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About Google Book Search Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web at|http: //books .google .com/I • • m- «* See alto Catalogue at end of thia Work. VALUABLE LAW WORKS PUBLIBHSD BT STEVENS AND SONS, 119, CHANCERY LANE, LONDON, W.C. MAKCH, 1882. Frideauz's Precedents in Conveyancing.— With Disserfca- tions on its Law and Practice. Eleventh Edition, Thoroughly revised and adapted to the Conveyancinflc and Law of Property Act, 1881. By FEEDERICK PBIDBAUX, and JOHN WEITCOMBB, Esqrs., Bamsters-at-Law. In 2 vols. Royal Svo. 1882. Price Zl. 10«. cloth. NOTE. — ^All the precedents in this edition have been re-modelled, new ones have heen added, and the dissertations re-written with reference to the reoent Act. "The most useful work out on conveyancing." — Lcm Journal, Harris and Clarkson's Conveyancing and Law of Property Act, 1881 ; and the Vendor and Parohaser Act, 1S74 ; with Notes and Copious Index. By W. MANNING HAREIS, M.A.. and THOMAS CLARKSON, M.A., of Lincoln 8 Inn, Barristers-at-Law, and Fellows of King's College, Cambridge. Demy 8vo. 1882. Price 98. cloth. " The notes in this Tolume are more copious and exhaustive than those in any other edition of these Acts which has at {xresent appeared." — Law /oumat, Januuy 28, 1882. Greenwood's Manual of Conveyancing. — A Manual of the Practice of Conveyancing, showing the ^resent Practice relating to the daily routine of Conveyancing in Solicitors' Offices. To which are added Concise Common Forms and Precedents in Conveyancing. Seventh Edition, With new PrecedentSy including Agreements under the Solicitors Remuneration Act, 188L Edited and thoroughly revised by Harby Greenwood, M.A., of Lincoln's Inn, Esq., Bairister-at-Law. Demy Svo. 1882. Price lbs. cloth. <* One of the most useful practical works we have ever seen." — Indermaur*a Law Student* t Journal, Bnllen and Leake's Precedents of Pleading. With Notes and Rules relating to Pleading. Fourth Edition. Bevised and adapted to the Present Practice in the Queen's Bench Division of the High Court of Justice. By T. J. BULLEN, Esq., Special Pleader, and CYRIL DODD, of the Inner Temple, Esq., Barrister-at-Law. In two parts. Parti. Royal l2mo. 1882. Price 24t8. clcth. Contains (1) Introduotorv Notes on Pleading. (2) Forms of Statements of Claim in Actions on Contracts and Torts, with Notes relating thereto. " Mr. Thomas Bullen and Mr. Cyril Dodd have done their work of adaptation admirably."— Lato Jounuil, January 21, 1882. Archibald's Country Solicitor's Practice,— A Handbook of the Practice in the Queen's Bench Division of the High Court of Ju&tice ; with Statutes and Forms. By W. F. A. ARCHIBALD, Esq., Barrister- at-Law, Author of '* Forms of Summonses and Orders." Royal 12tno. 1881. Price 11. 5a. doth, " In every place in which we have tested the work we find it thoroughly trustworthy. . . . Its antoigement is excellent, and altogether it is likely enough to become a popular solicitors' handy-book."— 7%« TinuSf January 7, 1882. Harris' Hints on Advocacy. Conduct of Cases, CivU and Criminal, Classes of Witnesses and suggestions for Cross-Examining them. By RICHARD HARRIS. Barrister^bt-Law, of the Midland Circuit. Sixth Edition, (Further Revised and Enlarged). Royal 12mo. 1882. Price 7s. 6d. cloth, " Full of good sense and just obscnratioa. A very complete Mantud of the advocate's art in trial by jury."— ^ofifdw/ Javrmal. The Student's Foc^^--XuBJLAzii Jurisprudence, explaini with a Literal Translat %* Aa Standard Law or Dictionary of d in Enfldish Law ; together 1882. Price 6s, cloth. and other Itndinffi, m X696 ^1^0- hX ••5 PREFACE TO THE SECOND EDITION. It must always be a satisfactioo to the writer of a law book when the demand for it is sufficient to enable him to keep it abreast of the case law on the subject of which it treats. The preparation of this edition has, however, given me an opportunity not only of incorporating the results of the chief Admiralty decisions since 1878, but also of thoroughly revising and some- what enlarging the book both in text and appendices ; for a careful observation of the work of the Admiralty Court since the first edition was published could not Ml to show in what way a second might be made more useful I have to thank my friend Mr. C. F. Jemmett for assisting me from time to time, and Mr. J. 6. Smith, deputy registrar, for information on some points of practice. E. S. ROSCOE, 1, Kino's Bench Walk, Templb, February^ 1882. a % CONTENTS. PAOB Intbodugtion 1 PART I. CHAP. L— Salvage 13 CHAP. IL— Towage 38 CHAP. III. — Damage by Collision and Breach of Duty or Contract in the Carriage of Goods - - 43 CHAP. IV.— Wages 60 CHAP. v.— Necessaries 72 CHAP. YL — ^Possession, Co-ownership, and Accounts - - 77 CHAP. Vn.— Mortgage 81 CHAP. VIIL— Bottomry and Respondentia - - - - 84 CHAP. IX— Sect. I. Forfeiture of Ships - ... 95 Sbct. II. Removal of Master - - - - 96 Sect. III. Actions for Injuries inflicted by Per- sons to Persons on the High Seas - 97 CHAP. X.— The Order of Claims 98 VI CONTENTS. FAOI CHAP. XL — Inferior Gourte of Admiralty and Appeals there- from 102 Sbct. I. The County Courts - - - 102 Sbct. II. The City of London Court - -113 Sect. IIL The Court of Passage at Liverpool - 114 Sbct. IV. Justices of the Peace - - - 115 Sbct. Y. The Admiralty Court of the Cinque PortB 120 Sect. YL The Commissioners within the Cinque Ports 121 Sect. VIL The Boyal Courts of Jersey and Guernsey ----- 122 Sbct. VIII. The Admiralty Court of the Isle of Man 123 Sect. IX. The Vice- Admiralty Courts - - 124 Sect. X. Appeals to the Privy Council- - 128 Sect. XI. Appeals to the High Court of Justice 133 Sect. XII. Appeals to the Admiralty Court of the Cinque Ports - - - 139 PART II. THE PRACTICE OF THE COURT. ORDER I. Form and Commencement of Action • -141 IL Writ of Summons and Procedure - - 142 m. Indorsements of Claim - - - - 145 IV. Indorsement of Address - - - - 146 V. Issue of Writs of Summons - - - 147 VI. Concurrent Writs 159 VII. Disclosure by Solicitors and Plaintiffs - 160 VIIL Renewal of Writ 161 IX. Service of Writ of Summons - - - 162 X. Substituted Service - - - - 166 XL Service out of the Jurisdiction • - - 166 CONTENTS. VU FAOB ORDER XIL Appearance 168 XIII. Default of Appearance - - - - 171 XY. Application for Account where writ In- dorsed under 0. IIL, r. 8 - - - 174 XVL Parties 174 XVIL Joinder of Causes of Action • - - 181 XYIII. Actions by and against Lunatics and Per- sons of Unsound Mind - - - - 182 XIX. Pleading Generally 182 XX. Pleading Matters arising Pending the Action 188 XXL Statement of Claim 189 XXIL Defence 190 XXIIL Discontinuance - - - - - 192 XXIY. Reply and Subsequent Pleadings - - 193 XXV. Close of Pleadings 193 XXVL Issues 194 XXVIL Amendment of Pleadings - - -194 XXVIIL Demurrer 196 XXDL Default of Pleading - - - - 198 XXX. Payment into Court as Satisfaction - - 200 XXXL Discovery and Inspection - . - - 202 XXXIL Admissions 209 XXXIII. Inquiries and Accounts .... 209 XXXIV. Questions of Law 216 XXXV. Proceedings in District Registries - - 216 XXXVL Trial 219 XXXVIL Evidence Generally 224 XXXVIIL Evidence by Affidavit - - - - 228 XL. Motion for Judgment .... 229 XLL Entry of Judgment 230 XLIL Execution 234 XLIIL Writs of Fieri Facias and Elegit - - 241 XLIV. Attachment 241 XLV. Attachment of Debts - - - - 242 XLVI. Charging of Stock or Shai-es and Distrifigas 244 XLVIL Writ of Sequestration - - - - 244 XLIX. Writ of Delivery 245 Vlll CONTENTS. • PAOK ORDER L Change of Parties by Death, &c - - 246 LI. Transfers and Consolidation ... 246 LIL Interlocutory Applications as to Mandamus Injunctions or Interim Preservation of Property .-...- 248 Lin. Motions and other Applications - - 250 LIY. Application at Chambers .... 252 LV. Costs 254 LYI. Notices, Paper, Filing Documents, and Searches 264 LVIL Time 265 LVm. Appeals 266 LIX. .£fifect of Non-compliance • - - - 272 LX. Officers 272 LXL Sittings and Vacations - - - - 272 LXIII. Interpretation of Terms - • - - 274 APPENDIX L STATUTES. Pabt L Statutes relating to ths Procedure and Jurisdiction of the Admiralty Division* PAOB Judicature Act, 1873, 36 & 37 Vict. c. 66 - • - 277 Judicature Act, 1876, 38 & 39 Vict c. 77 .... 289 Appellate Jurisdiction Act, 1876, 39 & 40 Vici c. 69 - - 294 An Act to Improve the Practice and Extend the Jurisdiction ef the High Court of Admiralty, 3 & 4 Vict. c. 66 - - - 294 Admiralty Court Act, 1861, 24 Vict. c. 10 - - - - 300 CONTENTS. IX Pabt IL Stattdes relating to the Admiralty Jurisdiction of the County Courts. PAQK County Courts Admiralty Jurisdiction Act, 1868, 31 & 32 Vict. c. 71 306 County Courts Admiralty Jurisdiction Amendment Act, 1869, 32 & 33 Vict. c. 51 311 The County Courts Act, 1875, 38 & 39 Vict c. 60 - - - 312 Part III. The Vice-Admiralty Courts Act, 1863, 26 & 27 Vict, c 24 - 312 Part IV. ■ Sections of the Merchant Shipping Acta as to — (1) Saloage 316 The Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104 - - 316 The Merchant Shipping Acts Amendment Act, 26 & 26 Vict. c. 63 324 The Merchant Shipping Act, 1873, 36 k 37 Vict. c. 86 - - 325 (2) Damage and CoHisitms 326 The Merchant Shipping Act, 1864, 17 & 18 Vict. c. 104 - - 326 The Merchant Shipping Act, 1862, 26 & 26 Vict c. 63 - - 328 The Merchant Shipping Act, 1873, 36 & 37 Vict c. 86 - - 330 (3) Wages 331 The Merchant Shipping Act, 1864, 17 & 18 Vict c. 104 - - 331 The Merchant Shipping Amendment Act, 1866, 18&19 Vict c. 91 346 The Merchant Shipping Act, 1862, 26 & 26 Vict c. 63 - - 347 The Merchant Shipping Act, 1873, 36 & 37 Vict c. 85 - - 347 The Merchant Seamen Payment of Wages Act, 43 & 44 Vict c. 16 348 (4) Mortgage 350 The Merchant Shipping Act, 1864, 17 & 18 Vict c. 104 - - 350 The Merchant Shipping Act, 1862, 25 & 26 Vict c. 63 - - 356 (6) Forfeiture of Ships 356 The Merchant Shipping Act, 1854, 17 & 18 Vict..c. 104 - - 356 CONTENTS. APPENDIX II. ORDERS AS TO COSTS AND FEES. Part L Costs. FAOE Additional Rules of Court under the Supreme Court of Judica- ture Act, 1875, with Schedule of Costs - - . - 360 Part IL Fees. Order as to Court Fees under the Supreme Court of Judicature Act, 1876, with Schedule of Fees 376 Part IIL Order as to the taking of Fees and Percentages by Stamps - - 386 Part IV. Fees and Costs in Salvage Cases heard in a Summary Manner before Justices of the Peace ------ 387 APPENDIX III. MISCELLANEOUS ORDERS. Part L Admiralty Court Rules, 1869 389 Part IL Rules as to Printing, &c. -.---.. 400 CONTENTS. XI Part III. PAOB The Consolidated County Court Orders and Rules, 1875, with Forms 402 Part IV. Extract from Instructions to Eeceivers of Wreck in regard to Salvage issued by the Board of Trade . . * . 417 Part V. Rules of the Court of Admiralty of the Cinque Ports - - - 424 Part VI. Regulations for preventing Collisions at Sea, with a list of cases decided thereon 425 Schedule to M. S. A. 1854— Signals of Distress - - - 433 APPENDIX IV. STATUTORY FORMS. Writ of summons in personam 434 Writ for Service out of the Jurisdiction - - - - « 435 Writ of Summons in Action in retn 436 Notice of Writ in lieu of Service to be given out of the Jurisdic- tion 437 Form of Memorandum for renewed Writ 437 Memorandum of Appearance 438 Indorsements on Writ 438 Warrant of Arrest in Admiralty Action in rem • - - > 441 Notice of Payment into Court 441 Acceptance of Simi paid into Court 442 Form of Interrogatories 442 Form of Answer to Interrogatories 442 Form of Affidavit as to Documents 442 XU CONTENTS. PAGK Form of Notice to produce Documents - - - - - 443 » 99 79 99 Inspect „ 443 » 19 n 99 Admit „ 444 Praecipe for Warrant 445 „ „ Notice of Bail 445 Notice of Bail 446 Marshal's Report as to the sufficiency of proposed Bail - - 446 Praecipe for Bail Bond 446 BaU Bond 447 Praecipe for Commission to take Bail 447 Commission for Bail 447 Standing Commission to take Bail 448 Affidavit of Justification 448 Praecipe for Kelease 449 Eelease 449 Praecipe for Caveat Release 450 »> « w Warrant 450 „ „ „ Warrant by Plaintiff in case of Counter-claim 450 Petition - - 451 Answer 451 Reply - 451 Conclusion 451 Return as to Witnesses examined in London . - - - 452 Praecipe for Commission to examine Witnesses ... - 452 Commission to examine Witnesses 452 Return to Commission to examine Witnesses - - - - 458 Writ of Subpoena 453 Summons 454 Praecipe for Commission of Appraisement and Sale ... 454 Conunission of Appraisement and Sale .... - 454 Praecipe for Order for Payment out of Court - - - - 455 Order for Payment out of Court 456 Praecipe for Monition to bring in Certificate of Ship's Register . 455 „ „ Monition „ „ „ „ „ „ „ - 456 PrsBcipe to withdraw Caveat 456 Praecipe for Service by Marshal of any Instrument in rem other than a Warrant 456 CONTENTS. Xlil PAGE Pifficipe for Service by the Marshal of any Instniment in per- 9onam 457 Writ of Attachment 457 Notice of Motion 467 PrsBcipe for the Attendance of Trinity Masters or Nautical Assessors 458 Form and Precedent of Preliminaiy Acts 458 APPENDIX V. MISCELLANEOUS FORMS AND PRECEDENTS. PACK Foims and Precedents of Affidavits to obtain the Arrest of a Ship 460 Form of Claim on a reference to Registrar and Merchants - - 464 Affidavit of value of Ship totally lost 465 Affidavit of loss of Property on Board a Ship ... - 465 Affidavit as to amount of Freight due to Shipowner ... 466 Affidavit as to value of Cargo 466 Notice to Consul of Institution of Action against a Foreign Vessel 467 Precedents and Forms of Tender 467 Notice rejecting a Tender 468 Notice of the production of Witnesses for Examination before an Examiner 468 Notice that a Plaintiff proceeds no further in an Action - - 468 Notice of Bail 469 Consent to Bail Bond being Filed and the Twenty-four Hours' Notice Waived 469 Consent to Release 469 Agreement of Values 469 Agreement as to taking Evidence 470 Form of Notice of Motion for Leave to produce further Evidence 470 Notice of Objection to Admission of Pleading .... 470 „ „ „ „ Taxation 471 Form of Certificate of Survey in Action of Damage - - 471 XIV CONTENTS. APPENDIX VI. PRECEDENTS OF PLEADINGS AND BILLS OF COSXa Part L Pleadings. PAGE 1. Fonn of Headings applicable to Pleadings - - . . 472 2. Salvage (Life and Cargo) 472 3. „ (Ship) 478 4. Distribution of Salvage, including a Demurrer to the State- ment of Defence 480 6. Towage 482 6. Collision (Sea) 484 7. n (Biver) (alternative Claim against two Ships) - 486 8. Damage to Cargo 489 9. Damage to Cargo 493 10. Wages 494 11. Necessaries 496 12. Equipment of Ship 498 13. Possession 499 14. Mortgage 501 15. Bottomry 502 16. Limitation of Liability 505 17. Paragraph in Statement of Defence in Action for Damage claiming Limitation of Liability 507 18. Claim of Limitation of Liability by Counter-claim - - 507 19. Paragraph in Statement of Defence in Action for Damage alleging that the Vessel by which Damage was done was in Charge of a duly licensed Pilot 509 20. Paragraph in Statement of Defence in Action of Salvage alleging an Inequitable Agreement 509 21. Petition on Protest and Answer - - - - - -510 22. Petition in Objection to the Registrar's Report and Answer - 513 CONTENTS. XV Part II. BUls of Costs. FOBM PAOI A. Plaintiff's Costs in a Salvage Action up to Tender (lower scale) 517 E. Defendant's Costs in a Salvage Action after Tender (lower scale) 619 C. Plaintiff's Costs in an ordinary Action for Damage by Collision, with numerous Interlocutory Proceedings (lower scale) 621 D. Plaintiff's Costs in an Ordinary Action for Damage by Collision (higher scale) 628 £• Costs in a Consolidated Action of Damage, Defendants in first Action being Plaintiffia in second Action (lower and higher scale) 634 F. Plaintiff's Costs of a Reference before the Registrar and Merchants (higher scale) 640 G. Defendant's Costs of a Reference before the Registrar and Merchants, Defendant's Counter-claim having been pro- noimced for at the Hearing (lower scale) ... 642 H. Bill of Costs in the Court of Appeal (higher scale) - • 544 TABLE OF CASES. A. Aal^e Willemina, 74, 258 Abud V. Riches, 241 AcatoB 9. Bams, 52 Achillea, 252 ActfBon, 225 Actif, 115, 116, 117 Adriatic, 47 i£oliis,17 Africa, 20, 23 African Steamship Go. v. Swanzy, 58 Afrika,21 Agincoart, 68, 78 Aid, 111, 223 Aimo, 48 Aitchieoii v, Lohie, 26 Aitken f. Duubar, 220 Akerblom «. Price, 17 Albert Croeby, 61, 74, 76, 176, 232, 233 Albert IkLward, 44, 48, 256 Albion, 19, 30, 31, 79, 252 Aldridge v. Cato, 129 Alexander, 7, 59, 88, 164 Alexandria, 48, 106, 114 Alfeti,20 Alhambra, 196 Alice, 131 Alina, 107 Alme, 7, 59, 98. 164 Alison. V, Marcn, 61 Allen V. Garbut^ 105, 106, 107 Alma, 18 Amalia, 54, 55 Amelia, 259 American, 41 - Amerique, 25, 271 Ames, In re, 129 Amphitrite, 68 Ampthill, 80 AmBtel,134,268 Andalusian, 47, 54 Anders Knape, 17, 35 Andrew Wikon, 116, 136 Andrina, 31 Aneroid, 75 Ann and Mary, 223 Anna, 73. 74, 198 Annandale, 96, 177 Annapolis, 19, 39, 49 Annette, 202 Annie Childs, 157, 202 Antilope, 122, 196 Apollo, 79 Aquila, 23, 24 Arab, 67 Aracan, 45 ArgoB, cargo ex, 106, 107, 113 Associated Home Co. v, Whichcord, 179 Athol, 43, 144, 150 Atkinson v. Woodhall, 116 Atlantic, 69 Atlas, 14, 27, 91 Augusta, 86, 89 Australia, 244 Australian Steamship Co., In re, 9 B. Bahia, 51 Bailiffs and Jurats of Quenisey, Re, 122 Barefoot, 28 Bartley, 24, 255 Barton v. Field, 131 Barton t;. Beg., 131 b XVlll TABLE OF CASES. Biitavier, 47 Beadnell v. Bee^jon, 104 Beatrice, 261 Beaumaris Castle, 262 Beaver, 65 Belffic, 47 BelleropboD, 47, 205 Belson v. Belson, 129 Benares, 98 Benbow v. Low, 204 Benecke v. Frost, 179 Bengal, 60, 105 Bergstom v. Mills, 65 Berry v. Exchange Co., 251 Beta, 43 Bet«y, 159 Betsy Caines, 57 Biddick 226 Bigsby V. Dickinson, 268, 269 Bilbao, 43, 44 Black Prince, 56, 57, 259 Blake, 69 Blakeley Ordnance Co., In re, 241 Blakenev, 70, 119, 169 BlendenHall, 25, 28 Blenheim, 47 Blessing, 65, 105 Bold Buccleuch, 6, 8, 59 Bolton V. Bolton, 236 Bomarsund, 14, 24 Bonaparte, 93, 99 Bonne Anielie, 74 Bower v. Hartley, 179 Boyne and Cadiz, 21 Brandt v, Bewley, 58 Bristow V. Whitmoie, 67 Britain, 23 Broomfield v. The Southern Insur- ance Co., 91 Brothers, 136 Buckhurst, 48, 256 Balmer,6],68 Bums v. Chapman, 118 Bustros V. White, 205 Busy Bee, 135 Button V. Thompson, 64 By well Castle, 45 C. C. M. Palmer, 46 C. S. Butler, 27, 136 Cairo, 14 Calcutta, 48 Caledonia, 138 Camilla, 65, 69 Canada, 57 Canova, 22 Capella, cargo ex, 20 Carnarvon Castle, 260 Carolina, 66 Caroline, 21 Cartsburn, 179, 180 Casanova v. Keg., 130, 132 Cashin v, Cradock, 196 Cassiopeia, 165 Castaha, 68 Castlewood, 132 Cathcart, 82, 84, 151,211 Catherine, 13, 15, 87 Catherine of Dover, 45 Catterina Chiazzare, 142 Cecilie, 92 Celt, 256 Ceylon, 80 Champion, 24, 28 Chandler v, Qrieves, 40 Change, 92 Chapman V. Royal Netherlands Steam Navigation Co., 54 Charkieh, 9, 43, 153, 260 Charles, 29 Charles Adolphe, 27 Charles AmeBa, 8 Charlotte, 15, 31 Charlotte WyUe, 32 Chasca, 52 Cheshire Witch, 151 Chetah, 23 Chieftain, 61, 62, 67, 153 Christien v, Corren, 130 Christina, 41 City of Berlin, 259 City of Brooklyn, 47 City of Brussels, 255 City of Buenos Ayres, 57 City of Cambridge, 50, 260 City of Chester, 37 City of Edinburgh, 29 City of London, 66 City of Manchester, 257 City of Mecca, 9, 144 aty of Mobile, 70, 80 Clara Killam, 44 Clarisse, 24, 28, 120, 133 Cleopatra, 30 Clifton, 26 TABLE OF CAS£S. SIX Clutha, 65, 183 Clyde, 56, 58 Clyde Navigation Co. v, Barclay, 40 Collier, 20, 21 Collins V. Lamport, 82 Colombine, 30 CommissioneTB of Sewers v. Glass, 204 Commodore, 154 Comte Nesselroode, 10 Comtease de Fregeville, 73 Confidence, 135 Consett, 57, 259 Constancia, 65, 100 Constantino, 262 Constitation, 9 Cook V. Dey, 162 Cordelia, 207 Comer, 155. 158 Coromandel, 24, 98 Conmna, 260 Courier, 43 Craigs, 35 Crawford v. Hornsea Steam Co., 269 Cromwell, 226 CrusV., 22 Cuba, 137, 271 Cutter V, Powell, 64 Cybele, 18, 26, 196, 237, 270 (Smthia,47 D. Danneborg^ 51 Bantzic, 51 Dantzic Packet, 28 Daoiz, 49, 257 Daring, 100, 211 Daubney v. Shuttleworth, 251 Dayid Luckie. 138, 139 Dayies v. Garland, 162 Delamarier v, Winteringbam, 65 De LoTio V, Boit, 2, 42 Desdemona, 101 D. H. Peri, 260 Diana, 43, 171, 256 Dickinson v, Kitcben, 83 Dictator, 105 Disney v. Longbonme,.202 Doctor van Tunen Tellow, 94 Don Francisco, 10, 184, 205 Don Ricardo, 156, 158, 211, 260 Dossutei, 28 Dowse, 106, 114, 133, 136 Dowtborpe, 62, 100, 101, 164, 171 Ducbess of Kent, 69 Ducbesse de Brabant, 152, 153 Duke of Bedford, 88 Duke of Mancbester, 27 Duke of Sussex, 41 Dundee, 7, 59 Dunmore, 69 K E. U., 14 Ealing Grove, 68 Earl of Auckland, 49 Earl of Eglinton, 18 Earl Grey, 30, 143 Eastern Belle, 171, 258 Eastern Monarch, 13, 24, 25, 31 Edmond, 86, 87, 89, 93, 214 Edward Hawkins, 39, 254 Edward Oliver, 100 Edwin, 67, 68 Eider, 79 Eintracbt, 14 Eleanora Cbarlotte, 31 Eleanore, 116, 210 Elise, 121, 138 Eliza, 87, 99 Eliza Cotnisb, 6 Elizabeth, 65, 125, 127, 134 Elizabeth and Jane, 78 Elk A. Clerk, 51, 75, 100 Ellen and George, 23 Ellis V. Qen, Steam Navigation Co., 105 EUora, 14 Elpi8,76,107, 110 Emancipation, 86, 91 Enrnia, 29, 32, 206 Empire of Peace, 86, 90 Empress, 16 Empress Eugenie, 56, 57, 259 Empusa, 56, 93, 259 Enchantress, 21, 30, 31 Energie, 52 Eneigy, 40, 256 England, 31 Englishman, 45 Enterprise, 255 Esperance, 29 Ettrick, 20 Eudora, 93, 151 62 XX TABLE OF CASES. Eugene, 13 Eugenie, 100, 102 Eiirupa, 8 Euxine, 160 Evangel i.-mos, 151 Evangel istria, 81 Everaril v. Kendall, 106 Ewell Grove, 18, 25 Exeter, 65, 69, 99 ExjHjrt, 56 Explorer, 43, 175 Exprews, 53 F. Fair Haven, 174 Faithful, 91 Falcon, i;54 Fanchon, 82 Fanny M. Carvill, 45 Fenix, 116, 263 Ferguson, Ex parte^ 44 Ferunia, 66, 67, 68, 73, 101 Fire Fly, 21 Fleur-de-Lis, 67, 208, 258 Flora, 165 Florence, 16, 23 Flower v. Bradley, 106, 107 Flying Fish, 57, 214 Forest Queen, 134 Frances, 96 Franconia, 43, 55 Frankland, 188 Fmnz et Elise, 260 Frederick, 17, 63, 65, 68 Freedom, 143, 153, 208 Friar, 135 Fusileer, 25, 32 Fynoord, 134 G. Gaetano e Maria, 94 Galam, cargo ex, 98, 100 (Jalatea, 19 Ganges, 22, 133, 134, 255 Garnett v. Bradley, 15, 108 Gazelle. 57, 214 General Birch, 168, 218 General Palmer, 17, 137 General St^am Navigation Co. Guillon, 46 V. General Steam Navigation Co. v. London & Edinburgh Co., 257 Generous, 136, 137 George v. Reg., 128 George Dean, 30, 32 George and Richard, 43, 176 Gemiania, 224 Glanuibanta, 47, 105, 134, 259, 271 Glasgow Packet, 28, 250, 255 Gleaner, 259 Glenbuni, 234 Cilenduror, 25, 26, 34 Glengaber, 20 GlengaiTy, 47 Glenmanna, 87, 211,214 Glentanner, 70, 211 Gloriade Maria, 139 Golding v. The Whaiton Ry. Co., 196 Gtilendrina,29, 30 Golubchick, 67 Gondolier, 69 Graff Arthur Bemstorf, 78 Grant v. The Banque Franco-Egyp- titnne, 262 Gratitudine, 87, 90, 99 Great Eastern, 51, 65, 73 Great Pacific, 91 Grills V. Dillon, 270 Gumaraens v. Preston, 128, 132 Gunnestad v. Price, 1(.>6 Gustaf, 98 H. Haken Adelsteen, 208 Halkett, Ex parU, 86 Halley, 46, 49 Hamburg, 90, 91, 93 Hamilton v. Aquilina, 127 Hanna, 159 Happy Return, 18 Harmonie, 76 Harriet, 119,137,219 Harris v. Aaron, 268 Harris v. Owners of the Franconia, 104, 144 Hawkins v. Morgan, 247 Heart of Oak, 92 Hebe, 17 Hecla, 73 Hedwig, 17, 24 Heinrich, 256, 257 TABLE OF (!ASra. XXI Helen, 69 Helen and George, 23 Helen R. Cooper, 211 Helgoland, 88, 93 Henrj' Coxon, 225 Henry of Philadelphia, 137, 139 Hercules, 80, 127 Hermann Wedel, 16 Hero, 88, 90 Herz4>giti Marie, 61 Hewitt V. Cori', 10 Hibemia, 45 Hickman, 202, 258 Hjemmt-t, 39 Hocguard o. Reg., 132 Hodges V. Hodges, 190 Hollingsworth v. Palmer, 118 Honor, cargo ex, 18, 258 Hook V. Moreton, 61 Hoop, 164 Hc.pe, 30, 100, 142 Horlock, 198, 250 Horwellr. London General Omnibus Co., 179 Houston c. Hebden, 79 Houthandel, 26, 224 Howard, 30 Humphreys v. Edwards, 142, 247 Hunter t?. Parker, 125 Hunter v. Priiisep, 125 Huntley, 92 Hutchinson v. Glover, 205 Jane, 26, 29, 86, 88 Jane und Matilda, 61 Jane Seddon, 67 Jeff Davis, 233 Jenny Lind, 101 Jersey Jurats, lie, 122 Jeune Paul, 16, 1:^2 Johannes, 143 Johann Friedrich, 7(> John, 132, 258 John Bellamy, 213 John Boyne, 188 John Fen wick, 48 John M* In tyre, 55 John and Mary, 43 John and Th««ma»«, 29 John Evans, 107 Johnson v. Shippen, 85 Jonathan Goodhue, 87 Jones Brothers, 231, 237, 263 Joijge Andries, 1 7 Jonge Bastiau, 14, 31 Joseph Dexter, 69 Joseph Harvey, 17 Joyce V. Williamson, 91 Judd V. Green, 262 Julia, 40, 41 Julia Fisher, 260, 261 Juliana, 10, 66 Julma, 173 Juiimier, 171 Juno, 256 I. Ida, 43, 88 Idas, 79 Inca, 128 India, 28, 74, 171, 254 Indomitaible, 92 Imlufltrie, 40, 44, 47 Industry, 25, 26, 136 Innisfalleu, 79, 82, 84 Zona, 50 Ironmaster, 58 Irunsides, 50, 51 J. J. O. Potter, 19, 36, 39 Jacob Lindstrom, 201, 247 James Armstrong, 26, 32, 159 K. Kalamazoo, 8, 152 Karla, 264 Kamak, 86, 89, 90 Kate, 116, 118 Kathleen, 24, 28, 250 Kedive, 45, 272 Keith V. BuiTows, 81, 83 Kent, 78 Kepler, 213, 259 Kestrel, 258 Keyn, Reg. t?., 28, 104 Killarney, 171 Kingalock, 22, 25, 38, 39 KjoUenhaven, 47 Klein wort v. Cassa Maritima of Genoci, 91 Kynnersley Castle, 86 XXll TABLE OF CASES. Laconia, 127 Lady Banks, 128 Lady Downshire, 45 Lady E^dia, 19, 254 Lady Flora Hastings, 40 Lady Katherine Braham, 33 La. 9U 93 Eiickera, 97 S. Qiieen Mah, 31 RacftT, 24 Kailnorahire, 204 Iwijah, 54 Rijah of C5 Pwin^ihe, 23 Kathwaite Hall, 135 Ke>jecca, 93 R^ KijHe, 42 Red Rover, 20 Reg. V. Diaz, 138 Ri-g. V. Ke>Ti, 144 Re<(ina del Mare, 171 Reid r. Darby, 125 Reliance, 6 Reward, 38 Riljy Grove, 67 Rice V. Baxeiidale, 58 Ri^'a, 73, 74 Rio Grande Steamship Co., In re, 9 Rio Lima, 110, 113, 158 RoViert Dixon, 19, 40 Itobert Pow, 256 RrKierick Dhu, 87, 89, 210 Rf>e 29 Roebuck, 68, 69, 257 Rfiecliff, 17, 165 Rolet V, Reg., 127, 132 Kt. rioR.K 54X 5S, :.'.>, 211 St. LawTtiiCt?, 74, 10 1 St. Nich<«la.«, 29 St. OUt>, 97, 152. 1&2 Salaeuu 23, 26, »>, 67, 1«30. lol, 21 1 Sallj, 131 Sandrman r. Scmr, 51 San Roman, 52 Santi5«ma Trinidad, 69 Sappho, 21 Sancen, 53, 1<-»1 Sarah, 14, 144 Sarah Jane, 23, 29 Saratfira, 19, 26 Sarpedon, carjo ex, 32, 255 Savemake, 259 Saxonia, 46 Scaramani^a v. Stamp, 26 Sceptre, 95 Schiller, cargo ex, 32 Schroder r. Cloiigh, 236 Schwalbe, 225 Schwan, 257 Scindia, 23, 26, 131, 132, 268 Scio, 76 Scout, 21, 175, 222, 255 Seaham, 247 See Reuter, 78 Segpe . Mar. L. C. ) FULLXB TITLI8. Christopher Robinson's Admiralty Reports, 6 vols Edward's Admiralty Reports, 1 voL . Dodson's „ „ 2 vols. Hag^d's „ „ 3 vols. William Robinson's Admiralty Re- ports, 3 vols Spmk's Ecclesiastical and Admiralty Reports, 2 vols Swabey's Admiralty Reports, 1 vol. Lushir^on's „ m 1 ▼ol. Browning and Lushington's Ad- miralty Reports, 1 vol. Law Reports, Admiralty and Eccle- siastical Cases, 4 vols. Law Reports, Probate, Divorce, and Admiralty Division . Iaw Reports, Privy Council Cases . Law Journal, New Series, Admiralty Court, and, after 1875, Probate, Divorce, and Admiralty Division. Law Times Reports, New Series . Weekly Reporter. The Jurist Reports. Moore's Privy Council Cases. Admiralty Court Act, 1861. Merchant Shipping Act. Judicature Act, 1873 or 1875. Admiralty Court Rules, 1859. Order. Rule. Aspinall's Maritime Law Cases. DATK. 1798—1808 1808—1811 1811—1822 1822—1838 1838—1850 1853—1855 1855—1859 1859—1862 1863—1865 1865—1875 1875 1832 1860 JUDGES OF THE ADMIRALTY COURT SINCE 1800. William Scott Baron Stowell Sir Christopher Robinson . Sir John NichoU Sir Stephen Lushington Sir Robert Phillimore 1798—1828 1828—1833 1833—1838 1838-1867 1867 ERRATUM. Page 49, note 2, line 2, ajUfr " and " insert " by common law the rule contained in it is applicable." ^« A TREATISE ON THE JURISDICTION AND PRACTICE or THX ^timitaltg Btbision OF THB HIGH COURT OF JUSTICE AND ON APPEALS THEREFROM. INTEODUCTIOK Th« Court of Admiralty was originally, as its name implies, Th« origin actually the Court of the Lord High Admiral of England, but High by degrees it became, though differing widely in its jurisdiction Court of from the Common Law and Equity Courts, an ordinary muni> raity.' cipal tribunal Throughout its history, a more or less continuous struggle was carried on between this Court and the Courts of Common Law, to retain, on the one hand, the extensive civil and criminal jurisdiction which it originally claimed, and on the other to lessen or to put an end to its powers. The progress of the struggle, broadly speaking, was to narrow the Admiralty jurisdiction of the Court, until within quite recent times, when by legislative enactments, and from a less jealous spirit on the part of the judges of the Common Law Courts, its jurisdiction has been considerably enlarged. It is only necessary to point to the unfettered exercise of its jurisdiction in cases of personal injuries caused by collisions at sea, and of breach of duty in the carrying of cargo, and of mortgage, as examples of this modem development. Until the twenty-eighth year of the reign of Henry VIIL the Court of Admiralty exercised a criminal jurisdiction over B' 2 INTRODUCTION. offences committed on the high seas, but in this reign it was enacted that such crimes were to be tried by the Lord High Admiral and commissioners in the same manner as offences committed on land; and in the reign of George III. these offences became triable by the ordinary tribunals. i So far as regards its mere general civil jurisdiction, it is not easy to say when the Lord Higlj Admiral's Court became actually established in this country, nor, except for merely antiquarian purposes, is it now of much importance ; beginning with a pei-sonal jurisdiction on the part of that important officer lumself, it became in time a Maritime Court somewhat a^alogou8 to those which in the middle ages existed in many seaports of Europe, and even of England.* It is certain, however, that so far back as the reign of Edward I. it was a Court not only well known, but jealously watched, for in the twenty-second article of Part C of the Black Book of the Admiralty the following words occur, which have been supposed to show the starting point of the Admiral's jurisdiction in civil matters : *' Item, any contract made between merchant and merchant, or mariner beyond the sea, or within the floodmark, shall be tried before the Admirall and noewhere else by the ordinance of . the said King Edward and his lords."' From that time various acts of. Parliament^ were passed in order to restrain the jurisdiction of the Court to things done on the sea, and from time to time persons tried to make use of its powers, but were restrained from proceeding by prohibitions issued by the Court of Queen's Bench.8 Nevertheless the juris- diction of the Admiralty Court over things done upon the high seas, such as salvage and damage by collision, seems to have 1 28 Hen. YIII. o. 15 ; 39 Geo. III. c. 87 ; Russell on Crimes, 5th ed., YoL L, p. 10, et seq. * The Black Book of the Admiralty, edited by Sir Traven Twiss, pub- lished under the authority of the Lords CommiBsionera of Her Majesty's Treasuiy, under the direction of the Master of the Rolls, contains a full account of these tribunals. * Black Book, vol. I, p. 69. « 13 Richard II. c. v. ; 15 Richard 11. c. iii ; 2 H^n. JY. a 11 ; the Black Book of the Admiralty, toL L, p. 412. ' See cases collected, 4th Institute, 134, and criticized by Story, J. ; De Lovio V. Boit, 2 Gallison, 398. INTRODUCTION. been undisputed, whilst, even over some special contracts, such as bottomry, and over other matters, such as suits for wages and necessaries, it with difficulty obtained a jurisdiction concurrently with that exercised by the Courts of Common Law and Equity/ The extent of wliat may be termed the recognised jurisdiction of the Court at the time when its powers wore most fiercely assailed, is well shown by an agreement made at Whitehall on February 18, 1632, in the presence of the King and the Privy Council, to solve, if possible, the difficulties which were con- tinually arising between the hostile Courts of Common Law and the Court of Admiralty. It runs as follows : "1. If suit shall be commenced in the Court of Admiralty upon contracts made or other things Personal done beyond the Seas or upon the Sea ; no Prohibition to be awarded. 2. If Suit be before the Admiral for Fraight, or Mariner's wages, or for breach of Charterparties, or for Voyages to be made beyond the Seas : Though the Charter- party happen to be made within the realm, so as the Penalty be not demanded, a Prohibition is not to be granted. But if the Suit be for the Penalty, or if the question be whether the Charterparty were made or not; or whether the Plaintiff did release or otherwise discharge the same within the Realm, this is to be tried in the King's Court at Westminster, and not in His Court of Admiralty. 3. If Suit be in the Court of Admi- ralty for Building, Amending, Saving, or necessary Victualling of a Ship, against the Ship itself and not against any party by name but such as for his interest makes himself a party ; no Prohi- bition is to be granted though this be done within the Realm.''' In 1648 and 1649, and during the protectorate of Cromwell, a strong attempt was made to invigorate the somewhat drooping Court ; its jurisdiction was enlaiged, and three judges were appointed to preside over it' But at the Restoration, the ' For a sketch of the vngea struggle and the ancient jurisdiction of the Court, see De Lovio v. Boit^ 2 Gallison, 898 ; and Pritchard*s Admiralty Digest, Xntrodnction, 2nd ed. ' A view of the Admiralty Jurisdiction, by John Grodolphin, LL.D., 2nd ed., 1685, p. 157. > Scobell's Acts and^Ordinances, c. 112, 1648, a 23, 1649, 1651, c. 3, 1654, c. 21, 1656, c. 10. ' b2 ^4 INTRODUCTION. enactmentR of the Commonwealth were declared void, and from that time until the appointment of Lord Stowell as judge of the Court, in 1798, its jurisdiction was of little practical importance. But the increase of English commerce, and the great reputation of this judge, graduaUy directed public attention to it, and when, in 1840, an Act^ was passed to enlarge its jurisdiction, a new field of usefulness was henceforward open to it. Thus claims and causes of action in respect of mortgages when the ship was under arrest, questions of title in actions of possession, and other causes were brought within its jurisdiction. In 1854' came another Act to improve the practice; and three years later, barristers and solicitors, in addition to the members of Doctors* Commons and proctors, were admitted to practise before the Admiralty judge. The jurisdiction already given to it was further enlaiged in 1861,' in a manner which would have been gratifying to the mediaeval civilians who had formerly endeavoured to uphold its powers. Thus in the nineteenth century, the necessities of modem commerce brought to the Court a jurisdiction which the common lawyers had for a long time denied that it could legitimately possess. « The Court The Judicature Act of 1873 effected a very radical change s<» of Admi- £j^ ^ ^jjg constitution of the Court is concerned. By the third ralty ib in- ^^ ourporated section of this Act the Court of Admiralty is constituted an 8uTO«me i^^^g"^ portion of the Supreme Court of Judicature, to which Court of its former jurisdiction is transferred.* But by a subsequent ture^S'S 8®c^i°^> ^® ^^^ order of things is to a large extent revived, since one separate division is formed, known as the Probate, Divorce, and Admiralty Division of the High Court, to which are assigned all causes and matters which would have hitherto M & 4 Vict. c. 65. « 17 & 18 Vict c. 78. • 24 Vict c 10. ^ See the Black Book ; Spelman on Admiralty Jurisdiction ; Coke'i Institutes, Part IV, The Admiralty jurisdiction conferred from time to time upon the county courts should also not be passed over without notice in regarding the Admiralty jurisdiction of our municipal tribunals from an historical point of view. » J. A 1878, SB. 8, 16. INTRODUCTION. i been within the exclusive cognizance of the Probate, Divorce, and Admiralty Courts.* By the Act of 1875,' provision is also made for the hearing in the Admiralty Division of actions of which it has hitherto taken cognizance concurrently with the Courts of Common Law. Thus, except so far as the name and certain parts of the procedure are concerned, the Admiralty Division occupies practically very much the same position as did the old High Court of Admiralty. The judge of the High Court of Admiralty has hitherto by The judge Royal Warrant exercised in time of war the office of judge of A J. A. 1878, 88. 81, 84. • J. At 1875, 8. 11, 6 INTRODUCTION. Act of 1861, have their origin in the Customs of the Sea,i and the principles which have guided the Admiralty judges of former days, and which have heen incorporated in the Merchant Shipping Acts of 1864, can he most unmistakably discerned in the Laws of Oleron,' and the provisions of the Amalpitau Table.' Thus at the j)resent time the Admiralty Division is guided not only by ordinary municipal law, and by those now well recognised principles of maritime law which have become an actual part of the Admiralty law of this country, but also by general maritime customs or principles more or less common to aU nations, so long as they do not directly conflict with the ordi- nary municipal law and with the decisions of the other divisions of the High Court.* Perhaps the most important part of the purely maritime juris- diction of the Admiralty Division is to be found in the doctrine Maritime of maritime lien.' This, which is unknown to the common law, lien and is quite distinct from an ordinary possessory lien, is a right to enforce by legal process a claim against the rea or thing itself » wliich is either the cause of injury in cases of collision, the object saved by salvors, the vessel on which service has been performed by mariners, or the security for a bottomry bond. It has been judicially defined as " a claim or privilege on a thing to be carried into effect by legal process."* If, therefore, a ship has been wrongly injured by another ship, the owner of the first ship has from the date of the collision a lien upon the latter for Extent of the amount of damage which he may have sustained. The lien extends to the whole of the ship whilst she remains entire, and to all parts of her if she should be wrecked and broken to pieces.' ^ Black Book of the Admiralty, III., p. 92 ; The Customs of the Sea, Arts, xviii., xix., xx. 3 Les Costumes B*01eron, Art. 3, Black Book, II. 213. > Black Book, IV., 18 ; La Tabula de Amalfa, Art. 1314, et seq. ^ The Neptune, 3 Hagg. 135 ; The Saxonia, Lush. 410 ; 31 L. J. Ad. 201 ; ^f^/'a -vjit^j* -rii r^' t-t*---. tl* J s; jl 1 :•• uZaLtZZX. xzfi to m — '/,'.••. ',f .V:v..ri^T i ;#:r.: z. •:: lie H^ Cin, ci:Iir>^d its . . J. * *•*. :».*'t '.f *.*, *A ^ :- .::^, w:. ^ i- r.:T ah .ir^iL-irr jTi-ue of the *; i-'ril vacancT which occms is £IIed np, will /.Ai*. V/ uk*; hl» .'l^re in the treceral jcdiciil bosintess of the 'if »*::*: Uf i.'rxt, thr; rff^d-trar. who is appc»inicd by the judge, *.vl */,//, in a/Mition to the imprirtant ju»licial duties which he j^'ff^t/f,* ifi htU'rhpf'jiUfTj api»lictition5, and in cases referred to U,fh Vf w^'/'tiHiti qu^ffitions of account, acts also as taxing master. itf iul'liUon ihnfti YA a deputy-registrar and the chief clerk and lii< *.ii\f'fr'i'iftnUtn. Another important official is the marshal and Mff j^ao^atr-Tnar;*;, to whom is intrusted, by himself, his deputies or fc'iWdiriAU^M, the duty of arresting ships or cargoes; of keeping * Tfu JvUnna, 2 Dods. 504 ; Tht Don FraneiKO^ Loah, 468 ; 31 L. J. A4. 14. « T/u! Kmjmta, L. B. 5 P. D. 6 ; 43 L. J. Ad. D. 36. ' J, A, mz, s. 24. 4 J. A. 1878,1.5. » J, A, 1876, «. 8. ' J. A. 1878, ». 77 ; J. A. 1875, a. 8 ; 3 & 4 Vict c. 66. The rogistrsr M %\m AilmMty Diviabn alao acts as the registrar of the Court of Appeal ffi Admiralty aotiona. INTRODUCTION. 1 1 them in safe custody; of appraising ships and cargoes when their value is to be officially ascertained ; and of unloading and trans- shipping cargoes. He has also to inquire into the sufficiency of persons proposed as sureties when bail is to be given, and to execute the processes generally of the Court/ In many cases, also, Trinity Masters sit with the judge as his assessors ; and in references the registrar is assisted by merchants. A noteworthy change in this department of the division has ^"j^^^ also been made by the Judicature Act of 1873, by which district ** registries have been formed, wherein much of the routine work hitherto necessarily performed in London has been transferred to the provinces,' since the district registrar has the same powers intrusted to him as are exercised by the registrar of this division.* In regard to appeals from the Admiralty Division, a change Appeals of some importance took place in 1873, when the right of AdmiraHy appeal to the Privy Council was abolished, and thenceforward I>ivi ion- appeals from the Admiralty Division were, like those from any other division of the High Court, to be heard by the Court of Appeal.* Consequently also a right of further appeal to the House of Lords exists in Admiralty matters under the Appellate Jurisdiction Act of 1876.' » J. A 1873, 8. 77. ' J. A 1873, 8. 60 ; and J. A. 1872, s. 13. Liverpo«finit»oii ° , , .0* salvage. those who have voluntarily^ saved a ship or boat or their apparel or any part thereof, or a ship's cargo or any part thereof, from peril of any kind occurring at sea^ or on the shores of the United Klingdom,' or a wreck from total loss, as by raising it when it has sunk,^ or who have saved human life,* except from a foreign ship out of British jurisdiction. For life salvage alone is rewarded by virtue of statute law and not the general maritime law, and therefore a reward cannot be given in thd latter case unless there is an agree- ment between the country to which the ship belongs and Great Britain that the English Courts shall award salvage for services rendered to the ships of such nation.® Salvage is also earned by those who have meritoriously contributed to the safety of property or life, even if their sole efiforts ^ The N^une, 1 Haf^g. 236. * E,g.f hfe and property from a burning ship : The Eastern Monarchy Lush. 81 ; plunder by savages : The Lady Wordey, 2 Spk. 253 ;' the risk of catching fire in dock from burning buildings : The Teetf Lush. 505. < M. S. A. 1854, 8. 458. * The Catherine, 12 Jur. 682 ; 6 N. of Caa. xliii. ■ M. S. A. 1854, 8. 458 ; A. C. A. 1861, s. 9. * M. S. A. 1862, & 59; The WiUein III., L. R. 3 Ad. 487; 25 Ix T. N. S. 386. lis SALVAGE. have not effected it,^ for example, by conveying informa- tion of the perilous position of a ship to a steam tug. And even if the services actually rendered have been of no avail, but further useful services would have been per- formed if they had not been put out of the power of those desirous of giving assistance by those on board the endan- gered ship, some salvage reward is in that case given.* There is, however, one exception to the genei-al rule that services, to entitle those who have rendered them to salvage, must have been successful and have contributed to the safety of property or life, which springs out of con- tract and is not purely maritime salvage. For if persons are engaged by a vessel in distress to assist her, or are sum- moned to her aid by signals of distress, and give their services and they are ineffectual, yet if the vessel is ulti- mately saved, these persons are entitled to some reward, since there has. been an engagement and a performance or part performance of an agreed service, not a mere voluntary and unsuccessful effort. Thus, if a vessel at anchor in a gale of wind hails a steamer to stand by her to be ready to take her in tow if necessary, and the steamer complies, but the vessel rides out the gale in safety without her assist- reril to ance, the steamer would be entitled to some salvage.* But life or g^ j^ jg ^]jg pgj.Q which givcs risc to the need for help, founda- danger of some kind to person or property is the essential uJvaffe. element in and foundation of any salvage service, without which such a service cannot exist.* Whether the danger be immediate or remote matters not so long as there is a reasonable possibility of misfortune, all the surrounding ^ The Atlas, Lush. 518 (527) ; 15 Moo. P. C. 329 ; The Jonge BoBtian, 5 C. Rob. 322 ; Tlie E. U., 1 Spks. 63 ; The Sarah, L. R. 3 P. D. 39 ; The Eintracht, 29 L. T. N. S. 851 ; 2 Mar. L. C. N. S. 19a 2 The Maude, 36 L. T. N. S. 26 ; 3 Mar. L. C. N. S. 308. » The U7idaunUd, Lush. 90 ; 29 L. J. Ad. 176 ; The E, U., 1 Spks. 63 ; The Nellie, 29 L. T. N. S. 516 ; 2 Mar. L. C. N. S. 142 ; The Melpomene, L. B. 4 Ad. 129 ; 42 L. J. Ad. 45. * The Mary, 1 W. Rob. 448 ; The Woftmineter, 1 W. Rob. 321 ; The Bomarsund, Lush. 77 ; The Cairo, L. B. 4 Ad. 184 ; 43 L. J. Ad. 33 ; The StraUhnaver^ L. B. 1 App. Cas. 58 ; 34 L. T. N. S. 148. SALVAGE. 15 circumstances being considered.^ But given some peril, the extent of it then becomes one of the elements which has to be considered in estimating the amount of reward which the salvors should receive. Again, by statute a kind of quasi-salvage, that is to say compensation for any labour undertaken, risk incurred, or loss sustained in consequence of the use when not needed of signals of distress, is recover- able in the same way as salvage proper.* The Court has jurisdiction to decide all salvage actions, Juriadic- whether the claims in them are for services performed on Court the high seas or in the body of a county, or partly in one and partly in the other of these places, or whether a wreck' is found at sea or cast on shore, or is partly at sea and partly on the land,^ and even when an agreement to render salvage services has been made on land.^ Within certain limits, which are pointed out in the chapter on the County Courts,' these tribunals have jurisdiction over actions of salvage. But since the decision of the House of Lords in Gamett v. Bradley, the ninth section of the County Courts Admiralty Jurisdiction Act 1868,^ by which no costs were recoverable without a certificate of the Judge, if the amount awarded did not exceed £300, or the value of the salved property £1000, is no longer in force.® The County Court limit may, however, be, and indeed usually is, taken into consideration by the Judge in exer- cising the discretion as to costs which he possesses by Order LV.,^ and so in practice is still a matter of importance. > The ChaHoUe, 3 W. Bob. 68. ' 36 & 37 Vict c. 85. ' Wreck of a ship, and also jetsam, flotsam, and lagan from a ship. See Palmer v. Rouse, 3 Hnr. & Nor. 505. * M. S. A, 1854, 8. 476. " The Catherine, 12 Jur. 682. ' As to jurisdiction of Cgimty Courts, see post, Ch. XI. ; and 31 & 32 Vict c 71, s. 3. 7 31 & 32 Vict c. 71, 88. 3 and 9. " QameU v. Bradley, L. R. 3 App. Cas. 944 ; 48 L. J. Ex. D. 186 ; and see Tennant & Co. t^. Ellis 17 & 18 Vict. c. 104. s. 460 ; Tlie Jeitne Paul, 1 L. R. Ad. 336 ; 37 L. J. Ad. 11. * The Neptune, 1 Hagg. 236. » TheFlorencefl6J\iT,b12. « The Warrior, Lush. 476 ; The Le Jmiet, 3 L. R. Ad. 534 ; 41 L. J. Ad. 95. SALVAGE. 17 passengers generally claim salvage, since in a case of com- mon danger they are bound to assist in saving the ship.^ Likewise, as a general rule, a pilot is not entitled to sal- PUcte. vage reward, except when circumstances which cause great and unusual danger supervene, so as to change the nature of his service from one of ordinary pilotage to one which assists in saving the ship from danger. The work, however, to entitle him to a salvage reward, must consist of some act or acts of a really meritorious character : something more must be done, for example, than merely lending a hand to the crew and assisting them in boisterous weather. A pilot may also be entitled to salvage when he has boarded l,«^i ihicb i, in d.^. „d given her hi. service. » « pilot. A ship, it is clear, may be in distress, but so near a port that the mere act of piloting her to her anchorage would not be more than ordinary pilotage service, and it has been recently laid down by the Court of Appeal that the rule by which to test the nature of the service rendered is, whether a fair and reasonable owner and a fair and rea- sonable pilot, if they had had to come to terms, would have agreed under the circumstances that the service should be performed for ordinary pilotage fees or for salvage reward. Assuming that a vessel is in danger and distress, a pilot who boards her is entitled to say he will only give his services as a salvor, and not as an ordinary pilot.^ Generally speaking, a ship's agent will not be entitled to ShipB* salvage unless the agency and the salvage services are *^° clearly distiaguishable, and his work has been of an extra- ordinary kind, which would not be fairly rewarded by the usual commission. It is often difiScult to draw the line ^ The Vreds, Lash. 322 ; 30 L. J. Ad. 209 ; Newman v. Walters, 3 Bos. & P. 612. s The Joteph Harvey^ 1 0. Bob. 306 ; The Oeneral Palmer, 2 Han;. 176 ; The Frederick, 1 W. Bob. 16 ; The Hebe, 2 W. Rob. 246 ; The Eidgmg, 1 Spk. 19; The Jonge Andrtes, Swa. 226 ; 11 Moo. P. 0. 313 ; The j^otus, 4 L. B. Ad. 28 ; 42 L. J. Ad. 14 ; The Anders Kixape, L. B. 4 P. D. 213 ; 48 L. J. Ad. 53 ; Akerblom v. Price, L. B. 7 Q. B. (C. A.) 129 ; 50 L J. Q. B. D. (App.) 629. C 18 SALVAGE. between the two kinds of labour, and therefore the Court does not refuse to entertain claims which prove to be^ in fact, for agency, and not for purely salvage services. In one instance, when a firm of ship's agents were engaged to discharge the caigo of a vessel wrecked on a beach, the Court upheld a tender which it considered sufficient, whether the services were in the nature of salvage or agency, not attempting to draw a line between the two kinds.^ Queen's As it is the duty of Her Majesty's ships to render assist- ^ ance to vessels in peril,* no claim can be made except for the personal and important services of the officers and crew, and that not without the consent in writing of the Lords of the Admiralty.^ There is no doubt that officers and seamen in the service of the Crown are entitled to the same amount of salvage in respect of their personal services as other salvors. In the judgment of the Court of Appeal in the case of The Cargo ex Woosung,^ it is stated that, owing to the peculiar position of the officers and sailors in the Bombay marine, they are entitled to such salvage as would be awarded to officers and crews of merchant ships. This implies that generally the men of the royal and mercantile navy are to be rewarded on different principles ; but there is no trace to be found in the books of any such distinction, nor does it seem to prevail in practice. ^^tig"- A steam tug or vessel engaged to tow a ship can only 1 The Pwriuvma Concepcioii, 3 W. Eob. 181 ; The Happy Betum, 2 Haffg. 207 ; The Cargo ez Honor, 1 L. R. Ad. 87 ; 35 L. J; Ad. 113. < M:S. A 1854, a. 484. * M. S. A. 1854, B. 485 ; The Ewdl Grove^ 3 Hags. 209 ; The Rapid, 3 Hagg. 419 ; TTie Botalie, 1 Spk. 189 ; The EaH of EglinUm, Swa. 7 ; The Alma, Lush. 378 ; The Nile, 4 L. R. Ad. 449 ; 44 L. J. Ad. 38; The Cargo ex ^oonin^, 1 L. R. P. D. 260 ; 44 L. J. Ad. D. 45. When the harbour of Bamsgate and all the property of the truatees thereof became vested in the Board of Trade, it was held that a veesel employed by the Board for harbour purpoees was not a Queen's ship : The dybele,U R. 3 P. D. 8 ; 47 L. J. Ad. 86 (C. A). * L. R 1 P. D. 260; 44 L. J. Ad. D. 45. SALVAGE. 19 claim for services to such ship if she incurs a risk or performs a duty outside the scope of her original engage- ment, and when she has been freed from the obligations under which she is placed by her original contract, as by a i;i8 major or by accidents not contemplated when the contract was entered into.^ The circumstances of each particular claim must be tested by this rule in order to determine whether towage have been changed into salvage services^ which must often be a question of great doubt. Thus, in the leading case of The Minifiehaha,^ when a tow rope broke and the ship drifted into a position of great danger, and in rescuing her the tug was injured by being strained, and much manoeuvring and extra exertions were necessary, it was held that the tug was entitled to claim an addition to the towage remuneration by way of salvage. The time of year at which the contract is made, and the weather which follows,^ as a very severe storm, but not simply rough weather, are material elements in con- sidering this question.^ But if a ship has been brought into a dangerous position by the fault of her tug, and is rescued by her from it, the latter can have no clai^ to salvage, on the principle that a vessel (so to speak) cannot profit by her own' wrong or default.^ Nor can the tug claim salvage firom a third vessel if peril has clearly been caused to her by some fault on the part of such tug in the performance of her original contract.^ It is on the same principle that if a salvor has rendered her services necessary \ Th PrinciM AUce, 3 W. Rob. 138 ; The MiwMhaha, Lufih. 335 ; 15 M0Q. P. C. 133 ; 30 L. J. Ad. 211 ; The Lady Egidia, Lush. 513 ; The 4wapolt8, Luah. 355 ; The J. C. Potter^ 3 L. R. Ad. 292 ; 40 L. J. Ad. 9. And see post, Chap. II., " Towage.'' > Lush. 335 ; 15 Moo. P. C. 133. » The WhUe Siar^ I L. R. Ad. 6a « The True Blue, 1 W. Rob. 180 ; The AWion, Lush. 282 ; The Saratoga, Lush. 318^ The Qalatea, 1 L. R. Ad. 68 ; The J. C. Potter, §tip.; The StraUmaver, 1 L. R. App. Cas, 58 ; 34 L. T. N. S. 14S. • The Minnehaha, supra; The RdbeH Dixon, L. R. 5 P. D. 54 ; 42 L. T. N. S. 344. • Th0 Annapolis^ Lush. 355. C2 20 SALVAGE. through her own previous wrongdoing, as by causing a col- lision between the salved ship and another, or by colliding with her herself, she cannot be allowed any rewaid for these services,^ especially as by statute vessels which come into collision are bound to render assistance to each other as far as possible.^ Associated When ships sailing together, and in association on a common enterprise and for their common benefit, and under an agreement to render each other assistance, give such help, it is not to be considered in the nature of salvage service.' There is no doubt also that a clearly proved custom among traders to a particular place or fish- ing boats belonging to a particular port gratuitously to give assistance to each other would bar a claim for salvage reward by one of themselves.* Char- ^g a^ general rule the charterer of a ship has no right to """' "" salvage unless he is for the time being in the position of an owner.^ Again, if the salving ship or salved property belong to one owner, there can be no claim for salvage services ; and the charterer of a ship who has, under the terms of a charter-party, the possession and control over the ship is in the same position as an original owner, if such ship renders service to his property.^ But this rule does not apply to cases where the charterers of the salved ship are not pro hoc vice in the position of owners, but are ^ The OUngaher, L. R 3 Ad. 634 ; 41 L. J. Ad. 84 ; The Cargo ex Capella, L. R. 1 Ad. 356 ; 16 L. T. K. S. 800. This rule does not prevent a vessel partly belonging to those who own the ¥rrongdoing ship from recovering salvage, though it wonld prevent such owners from receiving anv j>art of the salvage reward when it was apportioned. The principle is e<]^ually applicable to any other claim arising in consequence of negligent navigation, as one against a cargo owner for a proportion of the expense of raising the vessel, whidb is clearly an in- admissible demand : TKe Ettridc^ 50 L. J. Ad. D. 65 ; L. R. 6 P. D. 127i « 36 & 37 Vict, c 85, s. 16. * Th^ Waterloo, 2 Dods. 433 ; 7%e Zmhyr, 2 Ha^. 43. « The Svoafij 1 W. Bob. e8; The Bed Rover, 3 W. Bob. 150; The Africa. 1 Spk. 299. * The Al/en, Sw. 189. * The Maria Jane, 14 Jur. 857; The CoUier, 1 L. R Ad. 8a SALVAGE. 21 only ordinary charterers ;^ nor yet to the seamen on board the salving ship, unless their services can be considered as within the scope of their ordinary duties.* Neither is it applicable when a cargo on board is saved which belongs to persons other than the owner of the two vessels,* nor where the owoer or part owner of the salved ship is a co- owner of another, except so far as regards the co-owner in the salved ship.^ In determining the amount,^ if any, of salvage reward to ^'^^ be awarded, which is wholly in the discretion of the Court, which eu- there are three chief elements to be considered : (a) the ^^^age. extent of the peril of the object salved; (6) its actual value; (c) the nature of the salvor s services. But a contract, -A^gree- . ments as written or verbal,^ as to the amount of the reward, made to amount either between persons saved, or the owners of, or those °' ■*^^*o«- having authority over, the salved property, is binding on the parties, and will be enforced by the Court, as to the subject-matter of such agreement,^ unless it is clearly in- equitable^ from its character or from the circumstances under which it was made, as will be presently mentioned, and unless one of the parties are public officials, who, being bound to render salvage services, for which they will be properly rewarded when they claim in respect thereof, cannot legally enter into a salvage agreement.® Every agreement also by which seamen abandon their right to salvage is inoperative,^^ if it is a total abandonment of a * The JFaierloo, 2 Dods. 433 ; The Collier, 1 L. R. Ad. 83 ; The Scout, 3 L. E. Ad. 612 ; 41 L. J. Ad. 42. The Sappho, 3 L. R P. C. 690 ; 40 L. J. Ad. 47. The Miranda, 3 L. R. Ad. 561 ; 41 L. J. Ad. 82. The Caroline, Lush. 334. See examples at end of chapter. The Firefly, 8wa. 240. The Mtdgrave, 2 Hagg. 77 ; The True Bine, 2 W. Rcb. 176. The Ihickantrees^ IsvSn, 93 ; 30 L. J. A<1. 15. As to Rervicefl out- ride the terms of the agreement, 8ee The Bopie uiul The Cadiz, 35 L. T. N. S. 602. » The Cargo ex Woosung, 1 L. R. Ad. D. 260 ; 44 L. J. Ad. 45. " M. S. A. 1864, K 182 ; The Rosario, 2 L. U. Ad. B. 41 ; 35 L. T. N. a 816 ; The Afrika, L. R. 6 P. D. 192 ; 49 L. J. Ad. D. 63 : 22 SALVAGE. reward which would be due, and not merely an agreement to take a certain sum. This would be a valid contract if it was not vitiated by any of the circumstances which would nullify any other salvage agreement. By the terms of their contract of service, which must be most clearly proved/ seamen who engage themselves to a ship to be employed on salvage duty, and in return for their labour agree to receive a fixed and equitable remuneration, will be bound by such an agreement, if it is fair and just.* An agreement will also be set aside by the Court as inequitable unless it is made with fairness and impartiality by both parties, who must from the very nature of such a maritime contract be prepared to take the risk of changing circumstances.^ Both parties also must be competent to form a judgment as to the obligations arising out of the agreement into which they enter, and there must be a clear understanding as to its nature.* The following circum- stances will cause agreements to be set aside as inequit- able : When the reward is futile and utterly inadequate, or so exorbitant as to be manifestly inequitable ]^ conceal- ment of material facts, that is, of facts the withholding of which would be likely to be injurious to either of the parties to the agreement ;® powerlessness to resist salvors' demands, so that the agreement is, in fact, made under compulsion;^ and fraud or corruption of any kind.® In all By Maritime Law, see The Pride of Cai\ada^ Br. & Liish. 208 ; 9 L. T. N. S. 546. 1 The Pride of Canada, Br. & Lush. 208. > 25 & 26 Vict, c 63, b. 18 ; 2^ Ganges, 2 L. R. Ad. 370; 38 L. J. Ad. 61. The Conrt has power in its discretion to set such a con- tract, like any other, aside^ and regards all such agreements very jealously. s The JVaverUy, 3 L. R. Ad. 369 ; 40 L. J. Ad. 42. * The True Blue, 2 W. Rob. 176. » The Phantom, L. R. 1 Ad. 58 ; 14 W. R 774 ; The Theodore, Swa. 351 ; The Sileeia, L. R. 5 P. D. 177; 50 L. J. Ad. D. 9. « The Canova, L. R. 1 Ad. 54 ; 12 Jur. N. S. 528. 7 The Cargo ex Woomng, L. R. 1 Ad. D. 260 ; 44 L. J. Ad. 45 ; The Medina, L. R. 2 Ad. D. 272 ; 36 L. T. N. S. 799. • The Westminster, 1 W. Rob. 228 ; The Crue V,, Lush. 583 ; The Kingalock, 1 Spk. 265 ; The Theodore, Swa. 351. SALVAGE. S3 cases connected with salvage agreements, the amount of the award is very important evidence in support of the validity or invalidity of such agreements ; thus in one case eight shillings and sixpence was held to be so insignificant a reward as to vitiate the agreement ; whilst in another £15,000 was considered an unrea- sonably large sum.^ The master of a ship can bind his owners by a fair agreement,^ but not the crew, unless they assent to the agreement at the time or subsequently ratify it.' Those who set up such an agreement in an action for salvage must first clearly prove it ; after which those who impugn its validity must establish facts suffi- cient to avoid it.* As regards the elements which are considered in grant- The peril ing a salvage reward, the first is the peril to which the ject Lved. object was exposed. The more imminent the peril, the greater is the reward due to the salvors.* But it is now decided that when a vessel is derelict, this fact is only to be considered as an ingredient in the degree of danger to which the property was exposed, all the attendant circum- stances, such as the value of the property salved and the risk to the salvor, being also duly considered.^ The old rule, that a moiety of the value of the derelict ship should be given, thus no longer exists; and it has even happened, when the salvors' services have been unusually meritorious, that more than one-half has been awarded^ A derelict ship is one which is abandoned without hope of recovery, » The Phantom, L. R. 1 Ad. 68; The Silesia, L. R. 6 P. D. 177; 60 L. J. Ad. D. 9. » The Britain, 1 W. Rob. 40 ; The Africa, 1 Spk. 300 ; The Helen and George, Swa. 368 ; The Theodore, Swa. 367. » The Sarah Jane, 2 W. Rob. 110. « The Salacia, 2 Hagg. 266 ; The EUen and George, Swa. 268. • The Chetah, 2 L. R. P. C. 206; 5 Moo. P. C. N. S. 278; The True bhu, 1 L. R. P. C. 260 (266) ; 4 Moo. P. C. N. S. 96. • The Easche, 4 L. R. Ad. 127 ; 42 L. J. Ad. 41 ; Tlie AquUa, 1 C. Rob. 37 ; The True Blue, sup. ; The Florence, 16 Jur. 672 (678) ; The Sdndia, 1 L. R. P. C. 241 ; 35 L. J. P. C. 63. ' The Basehe, supra. 24 SALVAGE. or without any intention on the part of the master and crew of returning to her.^ It is sometimes a nice question to decide whether a ship is actually derelict if boarded by salvors when the master and crew have left her at anchor near a coast, but the test in such cases seems to be whether the crew left the vessel primarily for the purpose of saving their lives, or of obtaining assistance in their trouble.* As Dr. Lushington observes, " A master hardly ever abandons a vessel on the coast without the intention, if he can, to obtain assistance to save his vessel ;" and therefore a mere statement to the effect that the crew hoped or wished to or thought of returning is not in itself sufficient to prove that the vessel was not derelict. It is an old element of derelict that the property therein vests de jure in the Crown, subject to salvors* rights to remuneration.* When signals are hoisted, their nature is an important element in aiding the Court to arrive at a conclusion as to the degree of peril, if any, in which the vessel was placed. If, however, they are ambiguous, they will be interpreted according to the condition of the vessel which hoists them. Thus, if it is proved in evidence that her state was such as only to require the services of a pilot, the Court will hold that the signal was for a pilot, and not one of distress.^ t:io value. Secondly, the value of the object saved has to be con- sidered : hence life ranks higher than any property, and claims for life salvage have priority to all other claims, even to the extent that the Board of Trade may grant some salvage reward out of the Mercantile Marine Fund when a ship or cargo has been lost, or is insufficient in value to adequately reward the salvors.* ' The Aquila^ 1 C. Rob. 37 ; The Clarisae, Swa. 1 29. A barge Oilrift in the Thatnen is not a derelict : Tlie Zeta, L. R. 4 Ad. 460 ; 44 L. J. Ad. 42. * Tlie Coi'omandely Swa. 206 ; The Champion^ Br. & L. 69. * The Kathleen, 43 L. J. Ad. 39 ; 31 L. T. N. S. 204. * TheHedgwig, 1 Spk. 19; The LUtle Joe, Lush. 88; The Bomar- 8uvd, Lush. 77; The Kacer, 30 L. T. N. S. 004. » The Birtley, Swa. 198 ; The Coromandel^ tb, 205 ; The Ecutem Monardi, Lush. 81 ; M. S. A. 1854, s. 459. SALYAOE. 25 As regards property saved, whether ship or cargo, its value forms a most important element in the assessment of the amount which is due to the salvors ; ^ but whilst value must be fully regarded, it will not be allowed to raise the amount of reward out of proportion to the peril to which the salved object has been exposed, or to the services actually rendered by the salvors.^ A larger pro- portion of the value of the property is often awarded to salvors when it is small than when it is large, so as to give them adequate remuneration.^ The nature of the salvors' services is the next question Nature of to be considered. Their value depends on the peril to life or property which this enterprise causes ; the labour, the skill, and the courage shown by the rescuers; the time occupied in the task, and the state of the weather whilst the service was being performed. The value or power of the instruments* of the service is also an important ingredient ; hence salvage by steamers is re- warded more highly than that by sailing vessels,^ and large passenger steamers will, on the same principle, be entitled to a greater sum than tugs which are built to assist the progress of other vessels. When loss or damage has happened to a vessel engaged in a salvage service, it is always presumed by the Court that it was caused in such service.^ Actual losses and expenses in- curred or damage sustained by the salvors must be repaid » The EtceU Grove, 3 Hagg. 209 (221) ; The Indiutt-y, 3 Hagg. 203 ; The WiUiam Beckfordy 3 C. Rob. 355 ; The Oienduror, 3 L. B. P. C. 689 ; 24 L. T. N. 8. 499. » The True Blue, 4 Moo. P. C. N. S. 104 ; The Ameriqiie, 6 L. R. P. C. 468 ; 31 L. T. N. S. 854. s Th€ Blenden HaU, 1 Dods. 414 (421). ^ The Waiiam Beckford, 3 C. Rob. 355 ; The E'ls'ern Momrch, Lmh, 81 ; The FueiUe}-, Br. & L. 350 ; 3 Moo. P. C. N. S. 84 ; The OUndurcr, 3 L. R. P. C. 589. » The Kingalack, 1 Spk. 263 (267) ; The Spirit of the Age, Swa. 286 ; The Otto Hermann, 33 L. J. Ad. 189 ; The Palmyra, 25 L. T. N. S. 885. • The Thomae Blyik, Lush. 16. 26 SALVAGE. over and above any mere reward.^ Thus, where a tug was damaged, and detained in consequence, it was held that she was entitled to a sum both in respect of damage and also for demurrage.* But the loss of employment whilst rendering salvage services has been held not to be a certain element of damage.^ And damages, though separately estimated, are included in the actual award which is made, and form part of it. The possibility or risk of loss must also be duly weighed, as of the loss of insurance by the deviation of the ship ;* and of fishing profits by a smack ; * but such possi- bility must not be too remote. If necessary, the question of damages may be referred to the registrar and merchants.* But the concurrence of all or the absence of any of the above elements, after a full consideration by the Court of the interests of commerce and navigation, since public policy dictates the necessity for giving a liberal recompense to those who engage in so dangerous a service,^ must be the ultimate test of the value of every salvage service.* Conae- Salvors may by their acts, that is to say, through mis- MJm? °' conduct, error of judgment, or want of skill, debar them- 1 The Salacia, 2 Hagg. 271 ; The Jaive, id, 338 ; The Spirit of the Age, Swa. 286 ; The James A rmstrona, 4 L. B. Ad. 380 ; 33 L. T. N. S. 390. Except in the case of ships of the Crown : M. S. A. 1854, a. 484. » The Mvd Hopper, No. 4 ; 40 L. T. 462 ; 4 Mar. L. C. N. S. 104. » The CyMe, L. R. 2 P. D. 24 ; 3 Mar. L. C. N. S. 478. * The Scindia, 1 L. R. P. C. 241 ; 35 L. J. P. C. 53 ; Tfce Sir Ralph Ahercrombie, I L. R. P. C. 454 ; 4 Moo. P. C. N. S. 374. It has recently been decided that deviation to save property is not justifiable, but only to save life, and therefore the possibility of loss, whether in regard to the insurance on the ship or by giving a right of action to the owners of cargo against the shipowner, is now a more certain element for consideration than when iTie Scindia and The Sir Ralph Abercromhie were decided, since the question was then regarded as doubtful. See Scaramanga v. Stamp, L. R. 5 C. P. D. (C. A.) 295 ; 49 L. J. C. P. D. 674. » The HouthandeJj I Spk. 25 ; The Norden, id. 86 ; The Saratoga Lush. 318. < The JarUy 2 Hagg. 344. ' Aitchison v. Lohre, L. R. 4 App. Cas. 755 ; 49 L. J. Q. B. D 123. This case decided also that salvage does not fiedl within the suing and labouring clause of a policy of insurance. • The ClifUni, 3 Hagg. 120 ; The Industry, ih. 208 ; The William Bedcfordy 3 C. Rob. 356 ; The Glendwrtrr, 3 L. R. P. C. 692. SALVAGE. 27 selves from receiving a part of the reward to which they ?^*^" would be othervrise entitled.^ Although this is usually called forfeiting part of the reward, it is in reality the diminishing of the reward owing to the presence of cer- tain fkctfi, just as a smaller sum might be payable if the weather were calm than if it were stormy. Salvors may also in extreme cases forfeit the whole reward ; but misconduct when success has been finally achieved, in order to cause a total forfeiture, must be con- clusively shown, by the parties who rely upon it, to be wil- ful and almost criminal, and not a mere error of judgment.^ Thus when smacksmen who were trying to save a vessel raised a riot and resisted the employment of a steamer, it was held that they had lost their claim to any reward at alL* If it does not reach this degree of wrongfulness it will only lessen the amount of the reward.^ It has also been held that in cases of gross negligence the reward may be totally forfeited ; but the true reason for this ap- pears to be that greater injury has been done to the vessel saved by the conduct of the salvors than she would have suffered without their intervention, or that the injury caused by them exceeds the value of their services. In The Neptune,^ a vessel in distress was by the error of the salvors run aground, and so placed in greater peril than that from which she was being resctied ; and in The Duke of MaTicheBter,^ the actual injury sustained and the most imminent danger from which she was rescued were caused by the salvors' negligence. In The C. S, BuiUr^ there was an action of salvage and a cross-action by the owners of 1 The Duke of Manchester, 6 Moo. P. C. 91 ; 2 W. Bob. 470 ; The Nepttme, 1 W. Rob. 297. * jf^ Charles Addphe, Swa. 153 ; The AUas, Lush. 518 (528) ; 15 Moo. P. C. 329. * The Martha, Swa. 489. < The Atlasj sup.; The Magdalen, 31 L. J. Ad. 22 ; 5 L. T. N. S. 807 »'l W. Rob. 297. * 6 Moo. P. C. 91 ; 2 W. Rob. 470. M L. R. Ad. 178 ; 43 L. J. Ad. 17, 28 SALVAGE. the salved ship against the salvors for damage, and it was held that though the salvors were entitled to receive a certain sum, the owners had also a right to recover their damages. Therefore, if owners raise a counterclaim or set- off for damage caused, even by an error of judgment on the part of the salvors, the balance may possibly be in their favour. And since the master of a ship has a general authority to assist vessels in distress, his owners are liable for the damage caused in the course of such service.^ It is a simple question of fact as to what acts will be regarded as falling within the term misconduct, or want of skill or error of judgment, so as to work a forfeiture of salvage. But they have been held to include the non- delivery of wreck* to Eeceiver of Wreck ; improper reten- tion of property f unlawful obtrusion of assistance.^ Yet, as regards this last matter, if a vessel is derelict and abandoned, without any intention of return by the master and crew, the first band of salvors have a full legal right to remain solely in possession of the Avreck ; if they are wrongfully dispossessed by a second band who bring the ship into safety, the latter will lose all claim to a reward f but a second band, if the first have abandoned the wreck, possess all the rights of first comers.® There must also be included within this class improper refusal of further assistance, the test of the propriety or impropriety of such refusal being whether or not such further assistance was required to ensure the safety of the imperilled property f 1 The Thetis, S L. R. Ad. 365 ; 38 L. J. Ad. 42. ' M. S. A. 1854, 8. 450. This section does not apply to the case of a huge in the Thames delivered to owner : The ^eta^ 4 L. R. Ad. 460 ; 44 L. J. Ad. 42. » The Lady WoreUsy, 2 Spk. 255. * The Barefoot, 14 Jur. 841 ; The Glasgow Packet, 2 W. Bob. 306 (313) ; The Champion, Br. & L. 69. B The Champion, Br. & L. 69 ; The BUmden Hall, 1 Dods. 414 ; The Kathleen, 2 Asp. Mar. Cas. N. S. 367 ; 31 L. T. N. S. 204 • The India, 1 W. Rob. 406 ; The Clarisse, Swa. 12. ' The Maria, Edw. 177 ; The Dossutei, 10 Jur. 865 ; The Pickwick, 16 Jut. 670; TheDantsfiaPacket^ZliB^.Z&b', The Glatffow Packet,id,d06 SALVAGE. 29 unnecessarily taking a vessel to an inconvenient port, unless it were done to prevent a deviation from the course of the salvors' ship ; ^ neglecting to afford prompt help,' as well as exorbitant demands^ before giving such aid; and an error of judgment as to the harbour to which the ship is taken, if injury is thereby caused.* As to the apportionment^ of the salvage reward, there Apportion, is no fixed proportion of the sum awarded to be allotted nun to the various classes of salvors, and the amount to be •^"^•"^^^ given to each person is entirely in the discretion of the Court, according to the circumstances of each particular case.* The most common division of the several classes of salvors is into (a) the officers and crew of a ship ; (b) per- sons who assist other than the above ; (c) the owners of a ship. When some of the crew of a salving ship are put on Orew^ board a ship in distress, or when the service consists simply in the loan of one or more mariners, those left on board the salving ship and her owners are entitled to share in the apportionment of the reward, according to the increase of their labour or of the risk to them and to the ship by reason of her being short-handed,^ but to a less amount than those who have left it, especially if the imperilled ship has been in great danger,^ or the lives of those placed on board have been much in peril. It is on this principle that when a mariner goes on board a vessel in which the crew are or ^ Ths Etperanct, 1 Dods. 48 ; The Qrbtma, 1 Spk. 161; The Martin ZAUher, Swa. 287. * 7%0 City of Edinburgh, 2 Ha^. 333. * The John and Thomas, 1 Hagg. 157, n. 4 The Perloy Swa. 230. * See some examples of apportionment at the end of the chapter. * The Thetis, 3 Ha^. 14 (62). ' The Nicolina, 2 W. Rob. 176. * The Jane, 2 Hagg. 338 ; The Sarah Jane, 2 W. Bob. 110 (115); The Boe, Swa. 84 ; The Saint Nicholas, Lush. 29 ; The Charles, 3 LwR. Ad. 636; 26L. T. N. S. 594; TheQolindrina,\h.lSi.Aj^.Z^. But not on a light ship : The Emma, 3 W. Rob. 161. 30 SALVAGE. have been sufferiDg from an infectious disorder he is entitled to a very considerable reward. Thus, a mate was placed on a ship on which the master's wife and the chief mate had died from yellow fever, and the second mate and two seamen were ill from the same disorder, and the master was sick and weak, and he navigated her for 3000 miles for more than forty days with only six hands. The pro- perty saved was of the value of £5135^ and salvage to the amount of £900 was awarded ; this chief salvor received of that sum £600, the master of the vessel which he left £50, the crew £150, and the owners £100.^ The salvage reward which has to be divided among the officers and men will generally be distributed according to their rating,^ unless some individuals have performed more meritorious services than the others,^ when they may re- ceive double or treble shares.^ Persons who assist are generally rewarded on a less liberal scale than seamen,'^ unless they are of a superior station or of great capacity.^ Owners. The amount to which the owners of a salving ship are entitled depends upon the risk to which she has been ex- posed in consequence of rendering help to an imperilled object, the value of such help, her actual pecuniaiy value, and that of the cargo which she carries.^ The introduc- 1 The Skihladner, L. R. 3 P. D. 24 ; 47 L. J. Ad. D. 84. a Th€ Earl Grey, 3 Hagg. 363 ; Tke Columbine, 2 W. Rob. 186 ; The Two Friends, id. 353 ; 7%« Martin Luther, Swa. 290 ; The George Dean, id. 291 ; The Enchantress, Lash. 96 ; 30 L. J. Ad. 15. s The Hope, 3 Hagg. 423 ; The AWian, id, 254 ; The Oolendrina, 1 L. R. Ad. 334. * E.g,, The Cleopatra, L. R. 3 P. D. 145 ; 47 L. J. Ad. 72. s The Salacia, 2 Hagg. 269 ; The Hope, 3 Hagg. 425 (passengezs) ; The Perla, Swa. 230. < The Nicholas WOzeny 3 Hagg. 369 (pilot) ; The Tees, Loah. 505 ; 7 L. T. N. S. 257. 7 The Perla, Swa. 232. £1500 to owners, £500 to the master, £800 to crew : The Enchantress, Lush. 96 ; 30 L. J. Ad. 15 ; ^e Howard, 3 Hagg. 256, n. ; The PaUnwa, 25 L. T. K. S. 884. And see ^ Instructions of Boaid of Trade to Keceiven of Wreck," App. III., and p. 25, ante, and cases in note 5. SALVAGE. 31 tion of steam has considerably raised the proportion of the reward which is allotted to the owners. As in the majority of cases the chief risk and expense is incurred by the owners^ and the chief service is performed by their vessel,^ a not uncommon proportion for the owners to receive is one-half of the whole reward. When several bands of salvors are entitled to partici- pate in the reward, the amount to be allotted to each is in the discretion of the Court ; but the rule naturally is that it should be apportioned according to the value of the ser- vices which each set of salvors may have rendered.' The apportionment among several salvors^ when the ser- Apportion- vices have been rendered within the United Kingdom, if r^^^ the amount finally ascertained to be due, by agreement or ^i Wiedc by the award of justices, does not exceed £200, and dis- putes arise as to the apportionment, may be made by the Beceiver of Wreck for the district, on the application ol the parties liable to pay the same, who will first give the amount awarded to the Beceiver, and receive a certificate of payment from him.' If the amount exceeds this sum^ or the services have been rendered outside the United Kingdom, any Court having Admiralty jurisdiction may then apportion the amount which has been finally ascertained in such a manner as it thinks right and just. Salvors have a maritime lien on the property saved/ A mtri- Where ship, cargo, and freight are saved, each must con- *"°* 1 The Enehantrm, Lufih. 96. > For examples of apportionment, The JoMe Battian, 5 C. Rob. 322; TheAlbumj2Bam-2b5; The Charlotte, id, 361; The Queen Mab, 3 Hagg. 241 ; The PrSte of Canada, Br. & L. 209; The Undauntedy Lush. 90; 29 L. J. Ad. 176 ; The E^igland, 2 L. B. P. C. 253 ; 38 L. J. Ad. 9; The Eastern Monarch, Liuh. 81 ; The Andrina, 3 L. R Ad. 286 ; 28 L. T. K. S. 488 (derelict). * M. S. A. 1864, 88. 466, 467. As to the manner of distribution, flee ** Instroctions of the Board of Trade to Receivers of Wreck,'* poetf App. m. « The Ekanora Charlotte, I Hagg. 166 ; The Omtaf, Lush. 606. Ab to maritime lien and ita incidents^ see ante, p. 6. 32 SALVAGE. tribute its share of the salvage reward in proportion to its valae : ^ an impression that ballion is an exception to this rule has recently been decided to be erroneous.' Where lives on board a ship are saved, there is a lien on the ship, cai^o, and freight in respect of the reward due for such service. But if the ship be lost and only the cai^o or part of it is saved, the amount of salvage awarded in respect of the saving of life has to be borne by the property which has also been saved, for the liability to pay attaches only to property saved, and is not a personal liability on the part of the owners of the lost vessel.' The value of the property for salvage purposes is taken to be its value at the port where the salvors' services end.^ In the case of freight, it has been held that, even though as between shipowner and cargo-owner no freight has become due at this port, yet, that as services have been rendered in respect of a portion of the freight which is ultimately payable, the value must be roughly reckoned as the proportion finally due for the voyage as far as the port of safety, if that is not the terminus of the whole voyage.^ When there is a disagreement as to the values, a commission of appraisement should be taken out (for procedure, see Fart II.); but when it is only a question whether certain deductions may legally be made, a commission of appraise- ment is unnecessary.^ In practice, affidavits of value which differ are often brought into Court, and the values then agreed upon by counsel. In addition to the ordinary maritime lien enforceable by the process of the Admiralty Division, there exist also « The Westminster, 1 W. Rob. 233 ; The Emma, 2 W. Rob. 319 ; The Pyrennee, Br. & L. 189 ; TU Longford, L. R. 6 P. D. 60 ; 60 L. J. Ad. D. 28. ■ The Longford, supra. ■ The FusUeer, Br. & L. 341 ; The Cargo ex Schiller, 2 L. R. Ad. D. 145 ; The Cargo ex Sarpedon, L. R. 3 P. D. 28 ; 37 L. T. 606. « The SUUa, L. R 1 Ad. 340 ; 36 L. J. Ad. 13 ; The George Dean, Swa. 290. * The Norma, Lush. 124 ; The James Armstrong, L. R 4 Ad. 380. • The CharloUe Wylie, 6 N. of Cas. 6. SALVAGE. S3 certain statutory provisions which are of some importance. Briefly summarized they are to this effect Whenever any salvage is due to any person under the Merchant Shipping Acts, the Receiver of Wrecks may detain the property saved until payment is made or a process issued by the Court, unless security is given, when he may release the property.^ If the claim exceeds £200, the Admiralty Division may determine any question concerning the amount of security, and proceedings may also be taken in the Court to settle the question as to the amount of salvage which is due.* Moreover, whenever any property is de- tained by a Receiver for non-payment of any sums due for salvage, and the parties liable to pay are aware of the deten- tion, if the sum is (a) undisputed, and payment is not made within twenty days, or (6) if it is disputed, but no appeal lies from the first tribunal to which the dispute is referred, and payment is not made within twenty days after the decision of this tribunal, or (c) if the amount is disputed, and appeal proceedings are not instituted or payment made within twenty days, the Receiver may sell the property, or a sufficient part thereof, and from the proceeds pay to those entitled the amount of their salvage reward, and all attendant expenses, and hand over the surplus to those who may have a right to it.^ Again, in the case of one of Her Majesty's ships, or in that of any other ship, if the salvor in this last case is willing to abandon his lien, the master or person in charge of the salved ship may agree to abide by the judgment of a competent Court, and give security for such an amount as may be settled between the parties, and such agree- * By M. S. Amendment Act, 1862, s. 50, the Receiver, on the application of either party, may appoint a valuer to value the property, and after it has once heen roleased it cannot be detained by the salvors. The Lady CaiJierine Braham, Lush. 404; 5. L. T. 693. • M. S. A. 1854, s. 468 ; App. I. »M. S. A., 1854, 8. 469; App. I. D 34 SALVAGE. meut shall bind the ship, her cargo and freight, and their owners.^ There is also a series of provisions as to the enforcement of salvage by Her Majesty's ships which are contained in the Merchant Shipping Act, 1854;* these are voluntary and do not prevent a salvor from proceeding by the ordinary machinery. They "will be found at length in Appendix I. ExaTnples of Salvage Awards and Apportion/meTUs. L — Service. Life^^Propertv — Ltfe-Boatmen and Shoremen. The iron ship Olenduror, 994 tons, at 8 p.m. on an evening in February, came stem on to the Bhore, having parted her cables in a very severe gale which was then blowing. The life-boat was manned with the help of some 60 or 70 per> sons, and rescued 29 persons from the GUnduTor, For a week all these persons and other boatmen were engaged in landing and ware- housing cargo, and lightening the shlp^ which was got off and brought to London. Yiuue of ship, cargo and freight, j£46,000. Tender, £500. The Olenduror, L. R. 3 P. C. 589. Award. Apportiokmint. £2000. IT. — Service. Derelict — Mid Ocean, Ship Craigs, 1148 tons, with cargo of pitch pine, abandoned by crew, found by s. s. Teutonia in 'North Atlantic Ocean on 25th February, lat 48'' N., long. 9,1° W., 800 miles W. of Queenstown, wind N.E., Award. Apportiokment. £2300 Owners £500 (to cover all expenses), master, £100, £150 to crew of Teuionia who remained with her, £1500 among crew > M. S. A. 1864, 8. 497. ^ M. S. A. 1854, S8. 486—486 SALVAGE. 35 SXRYIGB. heavy swell, ship disabled, 4 ft, 6 in. water in hold. Teutonia screw s. 8. 2693 tons, with general caigo and horses. (h%w, 62 nands. First mate and boat's crew go to ship and return. 6 a.m., Teutonia steams to Craigs; 7*30, begins to tow ; 10*15 a.m., casts o% and proceeds on voyage, leaving mate and 4 A.B.'s on Oraigi. March 31, Oraigs arrives at Qneenstown after very heavy weather and great danger of loss. Value of Craigs and cargo more than £5000. Tender, £1800. The Craigs, L. R. 5 P. D. 186. Award. Apportionicxnt. who sailed the Craigt according to their rating. IIL~Skrviox. Pilotage — Ship sUgkUy ir^ured near Coast. Swedish s. s., Anders Knape, 401 tons register, had been aground near Long Sands, and injured her rudder, weather hazy, fresh breeze, con- siderable sea; smack Faith comes up and the master goes on board and agrees to pilot the Anders Kiume to Harwich, which is done. Her value was £2335. The Anders Knape, L. R. 4 P. D. 213. Award. Afportionmsnt. £30. IV.— Skrvioi. Salvage supervening on a Toioage Contract — Ship — Titg, The J. C. Potter, a ship of 1244 tons, with a valuable caiso of rice, bound for Liverpool, fell in with the Retriever, a tug valued at £11,000, with engines 650 actual horse power, off the Smalls, on the mommg of October 11, the weather being fine and wind moderate. The Retriever agreed to tow the /. C. Potter to Liverpool for £45, and began her contract at 11 a.m. October 12, 6 a.m., a heavy gale suddenly sprung upi and by 11 a.m., was blowing Award. Afportiommeht. £500. D 2 36 SALVAGE. Service. with extraordinary violence. By 5 p.m., ship and tug were drifting to the West Hoyle Bank. Midnight, the crew of the tug asked the master to cast off the tow, when there was peril of the loss of both tug and tow. 4 a.m., on October 13, wind mode- rated, and it became possible to make some progress to windward. Re- pairs to brig cost £144. Salvage services lasted from 11 p.m. to 2 a.m., value of ship, freight and cargo £20,000. The J, a PotUr, L. R 2 Ad. 292 ; 40 L. J. Ad. 9. Award. Apportionment. v.— Service. Life — Property — River — Titgs^ Bullion, S. B. Longfordf 1000 tons gross. 476 nett tons register, with a general cargo, 162 passengers, and 182 cattle, specie value of ^£50,000, was injured by collision in the Mersey, began to fill with water. The tUff Mersey King towed her to the wall, where she was beached. The Rover took passengers and luggage, The Knight of Mcuta, Rover and Royal Alfred took the cattle. Total value of pro- perty proceeded against £72,000. The Longford, L. R. 6 P. D. 60; 50 L. J. Ad. D. 28. Award. Apportionment. £1200. £300 to each tug. VL— Service. Mail and Passenger Steamer^Towage by steamer. The Brazilian screw s. s. 9496 tons gro^, 2284 tons nett register, 350 nominal, and 1850 indicated horse power, from Boston to Liverpool, witii cattle, pigs and sheep, flour ana bacon, with crew and cattle attend- ant, 75 hands in all, on 20th Sep- tember, in Atlantic Ocean, 166® W. of Fastnel light, lat. 50« 40' N., long. 14S W., fell in with City of Chester. Award. Apportionment. £8000. SALVAQE. 37 SSRVICB. The latter was a mail s. 8. 2712 tons nett, from New York to Liverpool, with crew of 146 hands, carrying pftBsengera, mails and car^, with crank shaft of her propeller broken and en^es disablecl, proceeding under sail at about 6 knots as long as wind was favourable. With diffi- culty, and after various breakings of the hawser, the Brazilian took the City of Chester in tow, and continued towing till 2 p.m. September 22, off Irish coast, remained by till 6 a.m. on September 23, when tugs took CUjf of CkfetcT to Liverpool. Value of Brazilian j^60,000, live stock, £22,000, cargo, £15,000. City of Chester of great value. The City of ChisUr, Jan. 20, 1881, (unreported). Award. Afportiohicekt. VII — .Service, Property — Service on Diseased Ship — Navigation. Barque Hirundo^ 332 tons, crew of 8 hands, left Mexico, in August, for Queenstown, with cargo. On A ugust 26, about 3000 miles from Liverpool, in lat. 36^ N., long. 70** W. falls iu with ljan][ue Skibladner^ 360 tons, 10 hands, l»ound from Florida to Liver- pool. The first and second mates were ill with fever, master had l)een too weak to do anything since leav- ing port. Skihladner was lost to sight, and on 1st September, seen again and boanled, first mate was then dead, another seaman was very ill, and no one to navigate. 0. O., mate of ffmtndoy who was the only p« rson, except the master, who could navigate the ship, was left on Skib- ladneTj and navigated her to Liver- pool Arrived on 11th October. 11th September, a gale, and 0. O. had to work as a seaman — Skih- Ladner's value, ;£2500, freight and cargo, X2635. Tender, £515. The SkOdadner, L. R. 3 P. D. 84 i 47 L. J. Ad. D. 84. Award. Apportionment. ;£900. j£l 00 to owners, £50 to master, £150 among crew, acconl- ing to rating, £600 to O. Osmandden. towage. CHAPTER IL TOWAGE. A ooatract TowAGE is a contract of service whereby the tug, which must be competent to fulfil the engagement, by being properly found with crew, tackle, and equipments, agrees to tow a vessel from one point to another for the purpose of expediting her on her voyage, and to use her best endeavours for the purpose.' This is ordinary towage, extraordinary towage is in the nature of salvage, and arises from an agreement to tow a disabled vessel to a place of Ordinaiy safety.* Salvage services can be engrafted on ordinary towage, but not on extraordinary, which is for the purpose of saving a vessel, not merely expediting her on her voyage.* The Admiralty Division has jurisdiction by statute ^ to decide all claims and demands in the nature of towage. Under this authority it will enforce payment for towage services and also agreements entered into in regard to towage, but in the latter case the amount of remunera- tion to be received must be reasonable and certain. Thus, in one instance, where in addition to a fixed sum the master of the .towed vessel agreed to give to the master of the tug an order upon the wharf owner for payment by him to the owners of the tug of the habitual premium — an uncertain amount — which was given to owners of tugs who should bring custom to the wharf, the Court 1 The Minnehaha, Lush. 345 (347). • The Reujard, 1 W. Rob. 174. » The Princees Alice, 3 W. Rob. 138 ; The Kingalock, I Spk. 263. * ^ 3 & 4 Vict. c. 65, 8. 6, see App. I. County Courts have juris- diction over towage claims up to £160, 31 & 32 Vict, c 71, s. 3. TOWAGE. 30 refosed either to enforce the agreement or to give damages for the breach of it.^ To be entitled to remuneration the tug must have fulfilled the obligations arising from the duty which she has undertaken ;^ nor when the amount to be paid for the service is fixed is the tug entitled to claim any extra sum in respect of a delay in the transit, as when a tow in the Thames, having come into collision with another vessel, the tug waited three days at Gravesend for the tow.^ From the fulfilment of her contract the tug may be How a tug released by discovering that material facts as to the tow ret^d were concealed when the agreement was made,* or by ^^^ ^®' . . engage- a via major or uncontemplated accidents which render the ment fulfilment of the engagement impossible ; but unforeseen difficulties do not come within either of these terms.^ Thus the breaking of the hawser, and delay in consequence, would be an example of a difficulty only. It may be doubted, however, whether the delay in the Thames men- tioned above was not such an uncontemplated accident as would have entitled the tug to have refused to wait by the tow, and to have considered the engagement at an end. But when the contract is dissolved by a via major, or an uncontemplated accident, it is the duty of the tug to remain by the tow in order to render all the assistance in her power, and then for the extra service the tug is entitled to claim salvage reward.® On the other hand, a conceal- Release of ment of material facts as to the state of the tus, or her l!!!!^'^"^ O' ^ engage- inability during the transit to complete her service with- "a«^** out delay, would entitle the tow to consider herself released from the contract, though any breach of it by the tug may 1 The Martha, Swa. 314. > The Edward Hawkins, Lusb. 515. » The Hj&mmet, L. R. 5 P. D. 227 ; 49 L. J. Ad. D. 66. « The Kingalock, 1 Spk. 263. ' The Minnehaha, Lush. 345. • The Annapolis, Lush. 355 ; The J. C, Potter, L. R 3 Ad. 392 ; 40 li. J. Ad. 9 ; and farther as to salvage by tugs, see ante, p. 18. 40 TOWAGE. be waived, like the breach of any other contract by the other party.^ L^ The principles which govern the performance of the ^]!!!Sfw!^ contract have been concisely laid down in the leading case the per- Qf the Julia,* in the following sentence, " the law would of Um imply an engagement that each vessel would perform its oontnot j^^y jjj completing it; that proper skill and diligence would be used on board of each ; that neither vessel, by neglect or misconduct, would create unnecessary risk to the other, or increase any risk which might be incidental to the service undertaken. If in the course of the perform- ance of this contract any inevitable accident happened to the one, without any default on the part of the other, no cause of action would arise. Such an accident would be one of the necessary risks of the engagement to which each party was subject, and could create no liability on the part of the other. If, on the other hand, the wrongful act of either occasioned any damage to the other, such wrongful act would create a responsibility on the party committing it, if the sufferer had not by any misconduct or unskilful- ness on her part contributed to the accident." On these principles the tug has been held liable for damage to the tow occasioned by a collision with a third vessel through the unskilful management of the tug,' and to indemnUy a tow for the loss of anchors and hawsers lost by the tug taking a course too near a lee shore,^ and a tow not to be entitled to damages against a tug for running her aground in a thick fog, since she herself had been guilty of con- tributory negligence by consenting to proceed in a fog of great density, in a nan*ow channel^ 1 The Lady Flora Hastiiigs, 3 W. Rob. 118. « Lush 224 ; 14 Moo. P. C. 210. » The Night Watch, l.ush. 542 ; The Energy, L. R. 3 Ad. 48 ; 39 L. J. Ad 25. * The Robert IHxm, L. R. 5 P. D. 54. • Smith V. The St. Lawrence Ironboat Co., L. R. 5 P. C. 308 ; 28 L. T. N. S. 805. The case of The Induetrie, L. R 3 Ad. 303 ; 40 L. J. Ad. 26, showB that the Court bos jurisdiction if damage has been TOWAGE. 41 During the period of an ordinary towage engagement the tug 18 bound to obey the orders of the master of the tow, or of the pilot on board of her,^ and is not responsible for the mismanagement of the master, or of the pilot, if one be on board the tow, if she attends to and fulfils, or en- deavours to fulfil, the directions given from the tow.* If, however, the direction of the course of the two vessels is left to the discretion of that which is towing, and the governing power is in her, as not unfrequently happens if one large steamer takes in tow another which is disabled, the tug will be liable if any injury is caused to a third ship — either directly if she herself is the cause, or in- directly if done by the tow — since the latter would have a remedy over against her for any damages recovered by the third ship.' It has been decided that when there has been a breach of a towing contract by improper naviga- tion on the part of the tug, by which the tow has been injured, the owners of the tug can limit their liability under the ordinary statutory provisions, though a breach of such a contract not arising from improper navigation would not bring the owners of the tug within the Act.* occasioned to a pier bv a ship, consequently this decision may bo applicable to cases in which a snip through the negligence of its tug does such damage. 1 The Chrutina, 3 W. Rob. 27. * The Duke of SuMex, L. R. 3 Ad. 48 ; 39 L. J. 25 ; The Julia, LnaL 224 ; 14 Moo. P. C. 210 ; TJie Ocean Wave, L. R. P. C. 206 ; 6 Moo. P. C. N. a 492. Since the case of The Mary, L. R 5 P. D. 14 ; 48 L. J. Ad, D. 66, it is doubtful if a tug can obtain the benefit of the Jaw as to non-liability in case of damage arising from the fault of a compulsory pilot The basis of this decision appears to be that the tug entered into the contract of service voluntarily, and must there- fore take the chances of the engagement ; but this case is not easily reconciled with those already citea above. It must also be pointed out here that as a pilot cannot be continually giving orders to the tug, if the latter adopts a wrong manoeuvre when the proper cdurse was reasonably apparent, the tow will be held to blame for the fault of her servant, since this will not be considered as a fault on the part of the pilot The Sinquaei, L. R 6 P. D. 241 ; 60 L. J. Ad. D. 6. * The American and Syria, L. R 6 P. C. 127 ; 43 L. J. Ad. 30. * Wahlbeig v. Young, 45 L. J. C. P. D. 783. CHAPTER HL DAMAGE BY COLLISION, AND BBEACH OF DUTY OR CON- TRACT IN THE CARRIAGE OF GOODS. Tbe divi' The subject of damage may be divided into four parts, thCuiub. that is to say, damage: I. To persons; 11. To ships; III. To j«ct. things other than the foregoing and cargo, as wharves, piers, &c. ; IV. To cargo, under which head it is con- venient to include damage by breach of contract or of duty in the carrying of cargo. TTie jurw- The jurisdiction of the Admiralty Division over actions thcCoiiri. ^^^ damage is based at the present time partly on the original maritime jurisdiction^ of the High Court of Admiralty, partly on two modem statutes. The material portions of these are as follows : " The High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever for damage received by any ship or seagoing vessel, and to enforce the payment thereof whether such ship or vessel may have been within the body of a county or upon the high seas at the time when the damage was received in respect of which such claim is made."* And " The High Court of Admiralty shall have jurisdiction over any claim for damage done by any ship."* The Court has jurisdiction in rem or in perscmam, against the person who may have caused the damage, though it does not extend to actions against pilots per- ^ As to this, Bee judgment of Justice Stoiy, in De Lovio v. Bolt, 2 OallisoD, 396 (A.) ; Introduction to l^tchaid's Digest • 3 & 4 Vict. c. 65, 8. 6. • A C. A 1861, 8. 7. DAMAGE. 43 sonally.^ If one remedy has proved insufficient, the other may be employed, and likewise if a judgment is recovered in the Queen's Bench Division and proves inadequate to fully compensate the plaintiff, he may sue in rem in the Admiralty Division, but he will not be allowed to bring two actions concurrently.* The jurisdiction over damage by collision extends to Actions foreign and British ships in foreign and British waters.* JJ^^^jj^ But since the Court cannot enforce a writ against a ship Sovereign, of the Crown, the Lords of the Admiralty voluntarily instruct the Admiralty Proctor to enter an appearance for the commander of any ship of the Crown when an action, as is usual, is brought in personam against him for damage done by the ship of which he was in charge.* In- ternational courtesy also causes an exception to the general rule in the case of ships belonging to a foreign government which are used for public purposes.* I. Actions may be brought by any person, whether he be Danmge an EiUglishman or a foreigner,® who has received any kind P^"**"^ » of injury from a ship,^ or by the personal representatives of one whose death has been caused by the wrongful act of a ship.® 1 The Alexandria, L. R. 3 Ad. 574 ; 44 L. J. Ad. 94. > The John and Mary, Swa. 471 ; The Zephyr, 11 L. T. N. S. 351 ; The Orient, 3 L. R. R C. 696 ; 40 L. J. Ad. 29. » The Bilbao, Lush. 149 ; 3 L. T. N. S. 338 ; The Diana, Lush. 539 ; 32 L. J. Ad. 57 ; The Cmrier, Lush. 541 ; A. C. A. 1861, s. 7. * M. S. A. 1854, 8. 527; The Athol, 1 W. Rob. 374. « The Parlement Beige, L. R. 5 P. D. 197 ; 42 L. T. N. S. 273 ; The Charkiehf 4 L. R. Ad. 59 ; 42 L. J. Ad. 17. In the matter of n« Charkieh, 8 L. R. Q. B. 197 ; 42 L. J. Q. B. 75 ; and see further ante,ip. 9. « The Explorer, 3 L. R Ad. 289 ; 40 L. J. Ad. 41. ' The Syhh, 2 L. R. Ad. 24 ; 39 L. J. Ad. 14 ; The George and Richard, 3 L. R. Ad. 466 ; 24 L. T. K S. 717, unborn child. The Court will not take cognizance of a tort not in the nature of a colli- sion, though a collision may be the consequence of it, as when a master of one ship cast off the moorings of another : The Ida, Lush. 6. • The Franconia, 2 L. R. Ad. 163; 46 L. J. Ad. 33 ; The Beta, 2 L. R. Ad. 449 ; 38 L. J. Ad. 50 ; A. C. A. 1861, ss. 7 and 10 ; M. S. A. 1854, 8. 14 ; 9 & 10 Vict. c. 93, s. 2. The decision in The 44 DAMAGE. 11. and III. Under the statutes already mentioned all to 8hip% injuries by ships to ships, by ships to things other than ^* ships, or by other objects to ships, wherever the damage is done, are included ;^ and if owing to the negligence of one vessel, damage is caused by a second to a third, the first is liable for the indirect injury f and this rule applies if the injuries received by the complaining ship are the results of any kind of negligence not necessarily of col- lision.* The In order to render a ship liable for damage, it must liability, have been entirely caused by the wrongful act of such ship;* forif it is wholly the result of inevitable accident, or wholly a consequence of the negligence or improper navigation of the vessel whose owners are plaintiffs, the ship proceeded against is free from liability. So also would it be if the act complained of arose from the conduct of a third person whose directions those on board the ship wei'e bound to obey, as a harbour master,* or a compulsory pilot.^ Should one vessel, however, make a collision inevitable, and the other in the agony of the meeting omit to do something which it would have been better to do, or do something which it would have been more seamanlike to omit, this will not be sufficient Franconia, by the Court of Appeal, must be taken as ovemiling Smith V, Brown, 6 L. R. Q. B. 729 ; 40 h, J. Q, B. 214. ^ A ship, under the 1^1. S. Act, was defined by Lord Blackburn as every vessel that substantially goes to sea, or is not propelled by oars, unless it is also a seagoing craft : Ex parte Ferguson, 6 L. R. Q. B. 280 ; 40 L. J. Q. B. lo5. For examples of rule in text, see The McUvina, Lush. 493; 31 L. J. Ad. 113 (baige) ; The Sarah, Lush. 649 ; Purkis v. Flower, 9 L. K. Q. B. 134 ; 43 L. J. Q. B. 33 Charge) ; The Uhla, 2 L. R. Ad. 297?. ; 37 L. J. Ad. 16 n. (a juer) ; The Albert Edward, 44 L. J. Ad. 49 (mooring dolphin) ; The Clara Killamf 3 L. R. Ad. 161 ; 23 L. T. N. S. 27 (submarine cable) ; The Philadelphia Steamboat Co. t?. The Philadelphia Ry. Co., 23 Howard, 207 (A.), (by piles in river). » The Thames ; The Sisters, 1 L. R. P. D. 117 ; 35 L. J. Ad. 39. * The Industrie, 3 L. R. Ad. 303 ; 40 L. J. Ad. 26. * For acts of negligence, see post, p. 47. ' The Bilbao, Lush. 149. * As to compulsory pilotage, see post, p. 49. DAMAGE. 45 to take the whole liability from the vessel whose act is the causa sine qud non of the collision.^ But if a reasonable doubt exists as to the cause of a collision, it will be con- sidered as an accident.* And where one ship is being towed by another, and a collision takes place with a third vessel, the one of the two ships will be liable on which is the governing as distinguished from the motive power.' Tow and tug are in law one vessel, and so a ship towing a pilot cutter has been held to blame when the latter carried a wrong light.* Subject, however, to these rules, the liability in each particular case depends wholly on the state of the particular facts. A ship is held liable for damage if, in an action for LUbiUty damage by collision, it is proved that it has infringed i„eMh of any of the Begulations made under the Merchant Shipping niMitime Acts, 1854 — 1872, without absolute necessity.^ That is to ticma. say, the liability attaches, unless the ship which has broken these rules can prove, not that the infringement was not, but could not have been a cause of the collision ; or, in other words, either the absence of any infringe- ment must be shown, or the impossibility of the collision having been a consequence of an infringement.^ The House of Lords recently decided^ that an unnecessary departure from the regulations, even in the agony of the 1 The a M, Palmer and The Lamax, 29 L. T. N. S. 94 ; 2 Asp. M. C. 94 ; TheBymll Castle, L. R. 4 P. D. 219 ; 41 L. T. 747. ' The Catherine of Dover^ 2 Hagg. 145. * The Jrocan, 6L. K. P. C. 127 ; 43 L. J. Ad. 30. * The Mary Hminsdl^ L. R. 4 P. D. 104; 48 L. J. Ad. D. 54. > 36 & 37 Vict c 85, s. 17. The Regulations as to lights do not apply to dumb barses on the Thames, The Owen JValliSy 4 L. R. Ad. 175 ; 43 L. J. Ad. 36. For the Regulations, with some decisions thereon, seejxx^. App. III. * The HUbemicL 31 L. T. N. S. 804 ; 4 W. R. 60 ; The Magnet, 4L.R 417; 44 L. J. Ad.1; The Fanny M.Carvm,Uh.Z, M.M \ 32 L. T. N. S. 646. The following are recent cases on s. 17. The Lady Doumshire, L. R. 4 P. D. 26 ; 48 L. J. Ad. D. 41 ; The Mary Houneel, L. R. 4 P. D. 204 ; 48 L. J. Ad. D. 54 ; The Englishman, L. R. 3 P. D. 18 ; 37 L. T 412 ; The Tirzah^L. R. 4 P. D. 33 ; 48 L. J. Ad. D. 15 ; The Buckhurst, L. R. 6 P. D. 152. ' The Khedive d: VoowaarU, L. R. 5 App. Cas. 676; 43 L. T. N. S. 610. 46 DAMAGE. collision, and though it only possibly contributed to the collision, did not absolve the ship from blame for such departure. The same decision tends to make it somewhat doubtful, though the departure could not possibly have contributed to the disaster, yet, if it was unnecessary, whether the ship so departing would not be to blame. As, however, this exact point did not arise in the case, this judgment is no direct authority on the question. But it was doubtful, until the Merchant Shipping Act, 1862, was passed, whether the statute which formulated the above rule could apply to foreign vessels on the high seas ; the general tenor of international law being on the whole against such application.^ And where a collision has occurred on the high seas between an English and a foreign ship any rules contained in the municipal law of the country to which such vessel belongs, as, for example, that the owner is not answerable for the fault of his captain, are of no avail here, since the general maritime law as administered by our Courts will govern the case.* Again, if a ship commits damage within the territory of a foreign power, the act complained of will not found a right of action here, unless it is both a wrong by the law of the country where the occurrence happened and by the law of England.^ Should a collision occur through a breach of these or any other maritime regulations, which breach is the. result of a previous collision between the defendant ship and another, in which the former was not open to blame, she will not be considered liable for the subsequent t 1 The Saxonia, Liisb. 410 ; 31 L. J. Ad. 201 ; Story, Conflict of Laws, J). 32. See now M. S. A. 1862, s. 56, and the Intemational Regulations. « The Ltm, L. R. 6 P. D. 148 ; 60 L. J. Ad. D. 69. The case of the Gen. Steam Navigation Co. v. Quillou, 11 M. & W. 877| does not conflict with this decision. » Tht Halley, L. R, 2 P. C. 193 ; 37 L. J. Ad. 33 ; Th4s M. Moxham, L. R. 1 P. D. 107 ; 46 L. J. Ad. D. 17; Westlake, Private International Law, 2nd ed., 222 DAMAGE. 47 breach.^ If the person in charge of one ship, after a collision, fails to render all practicable assistance in his power to the other ship, if she requires it, this will raise a primd fade presumption that the collision occurred through bis wrongful act or negligence, and he must give satisfactory evidence to rebut it.^ In addition to the neglect of statutory provisions which l'»ct§ ... . j» n A- •. • £_ which form constitutes one form of negligence, it may arise from many actionable circumstances, as improper sailing manoeuvres ;' the crossing n«glJ««w»- of a river by a steamer in a dense fog;^ absence of proper notice to passing vessels of an approaching launch ;^ want of proper warning by a ship aground in a river;® causing a swell in a river, and not easying when passing small craft ;^ want of proper look out;^ too high a rate of speed;® anchor- ing in an inconvenient place ;^^ carelessness in fulfilling the orders of a dock master when a vessel is entering or leaving dock,^^ and employing too weak a tug for docking or un- docking.^ If the complaining ship or thing is proved to have Contriba- suffered injury entirely in consequence of its own negli- gence. genoe, it must bear the whole of its own losses,^ Examples of such negligence are giving a foul birth,^^ want of con^ spicuous lights, when a vessel is casting off from her moor- 1 The Kjobenhaven, 30 L. T. N. S. 136; 2 Mar.L. C. N. S. 213. > M. S. A. 1873, 8. 16 ; The Queen, 2 L. B. Ad. 35 ; 38 L. J. Ad. 39 ; The Adriatic, 33 L. T. 102. > The Marmian, 27 L. T. N. S. 266 ; 1 Mar. L. C. N. S. 412. « The Lancashire, 4 L. R. Ad. 98 ; 29 L. T. N. S. 927. s The Blenheim, 10 Jar. 79; The Glengarrv, 43 L. J. Ad. 37; 30 L.T.N.S. 341; 2^ ^nc^o/tman, 2 L. R P. D. 231 ; 36L.J.Ad.77. « 2%« Jmliutne, 3 L. R. Ad. 303 ; 40 L.J. Ad. 26; The Thomae Lee, 35 L. T. 406; 3 Mar. L. C. 260. 7 The Batavier, 1 Spk. 378. 8 The GUannibafUa, 1 L. R. Ad. D. 283 ; 34 L. T. N. S. 934. • The aty of Brooklyn, 1 L. R. Ad. D. 279; 34 L. T. N. S. 394. »• The Bona, 29 L. T. N. S. 781 ; 2 Mar. L. C. N. S. 182. " The Cynthia, L. R. 2 P. D. 62 ; 46 L. J. Ad. D. 68. " The Be^, t. R. 2 P. D. 67 ; 36 L.T. 929. ^ For example, The Bdlerophon, 44 L. J. Ad. 7 ; 33 L. T. N. S. ^« The Vividf42 L. J. Ad. 57 ; 29 L. T. K. S* 375. ' 48 DAMAGE. ings, and the regulation lights cannot be seen;^ or of strength in a pier.* Inevitable When damage is caused by circumstances which the ship against which the action is brought could not have prevented by the exercise of ordinary care, caution, and maritime skill, the result of such events is an inevitable accident.^ But if anything has been omitted to be done by the injuring ship which might have rendered the accident less probable, though it might not have actually averted it, the defence of inevitable accident will not avail,* in other words, those in charge of a ship must take all such pre- cautions as men of ordinary prudence and skill exercising reasonable foresight would use to avert damage in the position in which they are placed.* The burden on the defendant of proving that damage is the result of an inevitable accident does not fall on him until a primd facu case of negligence is shown against him by the plaintiff.® It is also the Admiralty rule that where one ship has suffered loss from a collision, which the de- fendants state has been caused by the want of proper courage and seamanship on the part of those in chaise of the injured vessel, the burden of proving this fact lies on the defendants.^ When both If both ships are in fault, each bears half the loss caused hi Swdt" ^ *^® other, without regard to the amount of negligence shown by the two vessels.® 1 The John Fenwick, 3 L. R. Ad. 500 ; 41 L. J. Ad. 38 ; The PhOo- taxe, 37 L. T. 540. » The Albert Edward, 44 L. J. Ad. 49 ; 24 W. B. 179. » The Virgil, 2 W. Rob. 201 ; The Aimo, 29 L. T. N. S. 118 ; 21 W. R. 707 ; The Marpeeia, 4 L. R. P. C. 212 ; 26 L. T. N. S. 333. 4 The Pladda, L. R. 2 P. D. 34 ; 46 L. J. Ad. D. 61. • The William Liiidmy, 5 L. R P. C. 338 ; 29 L. T. N. S. 355 (breaking of a mooring buoy) ; The Calcutta, 21 L. T. N. S. 768 ; 3 Ai^. M. 0. (0. S.) 336 ; The Virgo, 35 L. T. N. S. 519 ; 3 Asp. M. C. N. S. 285 (latent defect in machinery) ; The MarpeeiOf 4 L. R P. C. 212 ; 26 L. T. N. S. 333 (thick fog). • The Marpeeia, sup. y The ThuHngia, 41 L. J. Ad. 44 ; 26 L. T. N. S. 446. • The Milan, iMBh, 388 ; 31 L. J. Ad. 105 ; J. A. 1873, b. 26, sub-s. 9 I t DAMAGE. 49 But the liability of the master or owner for damage is I>»«n*ge taken away when the loss or damage has been occasioned fault of solely^ by the fault or incapacity of a licensed pilot actually P""^ at the time when such damage was done in charge of the injuring ship, within the bounds of a district where the employment of a pilot on ships, including such as the vessel complained of, is compelled by law.* If the de- fendant proves that his ship was in charge (a) of a qualified pilot, (6) that he was bound to employ him by law, (c) neg- ligence on the part of the pilot a cause of damage, his prirtvA facie liability is removed, and the complaining party must rebut this evidence by showing contributory negligence on the part of the defendant or other causes in order to render the defendant liable.* But the default of ^ The Quern, 2 L. R. Ad. 354 ; 38 L. J. Ad. 39. * M. S. A. 1854, 8. 388. This statute applies to foreisn ships in British waters: The Annapolis, Lush. 295; 30 L. J. Ad. 201 ; and to British ships in foreign watera where pilotage is compulsory : The HaUey, 2 L. R P. C. 193 ; 37 L. J. Ad. 33 ; The PeerUss, Lush. 103 ; 13 Moo. P. C. 444 ; The Earl of Auddand, Lush. 164 ; 30 L. J. Alt. 121 . The provisions by which the employment of pilots is made compulsory are contained in the Merchant Shipping Act, 1854 ; and in various local Acts and Orders in Council. Thei^e are too numerous to be mentioned here, but the provisions of the Merchant Shippin^^ Act, 1854, may be briefly referred to. S. 353 continues the compulsory employment of pilots in all dis- tricts where it was compulsory when the Act came into operatioiL S. 354 obliges home trade passenger ships to carry a pilot, unless the n:a The I. 182 ; 47 L. J. Ad. 65. ^ If caused by fault of one of 'several co-owners, the rule applies to the others : The Spirit of the Ocean, Br. & L. 336 ; 34 L. J. Ad. 74. ' M. S. A. 1862, 8. 54. Carriers partly by land and partly by sea, who issue tickets for land and sea journeys, can obtain the benefit of this statute : London and S. W. By. Go. i;. James, 8 L. R. Oh. 241 ; 42 L. J. Ch. 337. ' The Amalia, Br. & L. 151 (155) ; 8 L. T. N. S. 805. . * The Rajah, 3 L. R. Ad. 539 ; 41 L. J. Ad. 97. As to method of pleading, see post. Part II. O. xix. r. 3. » The Normandi/, L. R. 3 Ad. 152 ; 39 L. J. Ad. 48. • Chapman v. Royal Netherlands Steam Navi^tion Co., L. R 4 p. D, 157 ; 48 L. J. Ch. 449. As to deductions m respect of crew DAMAGE. 55 It may be convenient in this place to direct attention to The the general practice in regard to the limitation of an u to owner's liability. It may be claimed in a statement of ?.^^i?«* . 1.1. limitation defence m which liability for the collision is admitted, of liability. and a stay of proceedings can then be moved for and will probably be granted, except as regards the proceedings for taxation and payment of costs, on payment into Court of the aggregate sum for which the owners are liable.^ This relief may be also claimed alternatively by way of counter- claim,* and, as we have seen, it is also possible for owners to obtain the release of their ship by paying the amount of their liability into Court, without thereby admitting any liability.' But the most usual practice is to claim the benefit of the statutory provisions, after the main action has been decided, by the issue of a writ claiming limita- tion, and by delivering a statement of claim showing that the vessel in question has been found to blame ; that the owners were not privy to the negligence which caused the collision, that the tonnage of the vessel is of a. certain amount, that the amount due in respect of such tonnage has been paid into Court, and claiming that the owners have a decree limiting their liability to this amount. The limitation action will then be set down for trial, and be heard on the usual motion day. The facts must be veri- fied by affidavit, and the ship's register must be brought into Court. The required decree will then be granted, and advertisements must be inserted in the newspapers calling upon persons who may have claims arising from the cause of damage in respect of which the limitation is granted to send in their claims generally within six epoce, see M. S. A. 1854, sb. 21, 22, 23 ; and M. S. A. 1862, ss. 54, 60 : The Franconia, L. R. 3 P. D. 164 ; 39 L. T. N. S. 57. The reffiflter at the time of coWhioniaprinid facie evidence of the tonnage : The John Mclntyre and John Ormston, 50 L. J. Ad. D. 76. » The Cluiha, 45 L. J. Ad. 108 ; 35 L. T. N. S. 36. • Wahlbeig v. Young, 46 L. J. C. P. D. 783. • The Amalia, Br. & L. 151 ; 8 L. T. N. S. 805 ; The Sutere, L. R, 1 P. D. 281 ; 36 L. T. N. S. 36. 5G DAMAGE. months, or within any shorter period which may be fixed by the Court. The money will be paid out at the end of this period, a reference, if necessaiy, having been previously held when there are several claimants. If the defendant in the limitation suit desires it the Court will require the plaintifiTs solicitor to give an undertaking that the costs of the limitation action shall be duly paid.^ It should be noted that the holder of a bottomry bond on freight has a cbdm for the amount of his bond against a sum paid out of Court to the owners of the innocent vessel in respect of loss of freight* The principle which regulates the assessment of damages to a ship is that the plaintiff shall be placed in the same position as if the ship had not been lost or damaged,' sub- ject to the provi The EmpuM, L. R 5 P. D. 6 ; 48 L. J. Ad. D. 36. » Th^. Clyde, Swa. 23. * Tke i>(Attk Sea^ Swa. 141. When a vefisel was Bimk by a collisiou, and was afterwards raised and repaired, and the cost exceeded her original value, it was held that the measure of damages was this prior value, though as this decision turneti lar^ly on whether or not the owners should have, if properly advisiMl, nuder- taken to repair her, it can hardly be looked on as establishing a general rule : The Empress Eugenie^ Lush. 138 ; and see next l^af^. * The Clwdey sup. ; The Pactolus, Swa. 173 ; 28 L. T. N. S. 220. * The Mauk Prince, Lush. 568 ; 5 L. T. X. S. 39 (by way of de- murrage) ; Tk^lLegatue, Swa. 168. Salrage to damaged ship, but not if rendered necessary by tfa« misconduct or neglig«noe of her crew : DAKAQE. 57 caused by the injury which is the ground of the action,^ but exclusive of those which, though they result from the damage, are not necessary consequences of it' Thus when the damaged ship was one of a line of steamers, each of -which took turns for sailing, and in the ordinary course of business was idle for a certain time, and the vessel in question lost her turn and took the following one, it was held that she was entitled to demurrage for the number of days she remained in port after her usual day of sailing, but not for the whole time during which she was in port.' The usual demurrage rate is sixpence per ton per day for steamers and fourpence for sailing ships.^ For the same reasons if a charter-party is abandoned because owing to the collision there is no reasonable probability that it can be fulfilled, this is a clear element of damage.^ Where the limited liability exceptions do not apply, interest where the vessel is lost without cargo runs from date of loss to date of payment ; where she is lost with cargo, on the value of ship and freight from the date of the probable end of the voyage.® Where the limited liability provisions are applicable, interest runs in all cases from the date of the lossJ Generally, when a ship is totally lost, her market value at the time of her loss is a fair criterion of her actual value, but it may also be estimated from various other facts, as her original value, or the opinion of competent witnesses on The Linday Swa. 206 ; The Betstf Caines^ 2 Ha<:^. 28. Sums agreed to lie paid an salvage : The Star of India , 1 L. K. Ad. D. 446 ; 45 L. J. Ad. 102 (loss of freight) ; The Gazelle, 21 W. Rob. 279. * The Thurinffiay 41 L. J. Ad. 44 ; 26 L. T. N. S. 446. * E. J!he Fmmioy 2 L. R. Ad. 66 ; 37 L. J. Ad. 60; The Marco Polo, 24 L. T. 804; 1 Asp. M. C. N. S. 54; The Limerick, L. R. 1 P. D. 292, 311. See also Bristow v, Whitmope, 9 H. of L. Gas. 391. * The VicUyria, 37 L. J. Ad. 12. * The Fleur ck Lis, L. R. 1 Ad. 39. ^ The Neptune,! Hagg. 238; The Sydney Cove, 2 Dods. 13; The Qdubchick, 1 W. Rob. 148. ' The Arab, 5 Jur. N. S. 417 ; The Mary Anne, 1 L. R. Ad. 8 ; 35 li. J. Ad. 6 : the right against the ship for dishursements is a creation of statute, and Ib not a maritime lien. » The Maty Ann, 9 Jur. 194; The Riby Grove, 2 W. Rob. 52. * The Chieftain, Br. & L. 104 ; 32 L. J. Ad. 106. ^« The Saiacia, Lush. 543 ; 32 L. J. Ad. 41. As to lien, ante, p. 6. F 2 C8 WAGES. not lost by the fact that the master is also part owner of the vessel,^ or that he was appointed by a person having at the time of such appointment a fraudulent possession of the ship, if there was no collusion between him and the master.* The matters which form the ground for defences to an action for wages as a whole, or which may cause some deduction from such a claim, are numerous. They arise either from the general principles of maritime law or from statutory enactments. The following are some of the leading defences and matters for deduction, which are nearly all based on the non-performance or improper per- formance of a seaman's duties : Desertion, — that is to say, leaving a ship without an intention of returning, or without the consent and leave of the master, or without a reasonable and urgent cause.' The neglect of a seaman to join his ship without reason- able cause, or to proceed to sea, or absence without leave ; * quitting a ship in the port of delivery, and before she is placed in security, without leave ; * wilful or continued wilful disobedience;* wilful damage to ship, stores, or cargo, or embezzlement of the same ; ^ acts of smuggling, for which the offender is convicted ; ® wilful refusal to work, neglect to work ; ® having been imprisoned on the 1 The Feronia, 2 L. R. Ad. 65 ; 37 L. J. AH. 6. , ' * The EdxDvn, Br. & L. 281 ; 33 L. J. Ad. 197. " M. S. A. 1864, 8. 243 (1); The Frederick, 1 Hagj;r. 211 ; The Caeialia, ih, 69 ; The Minerva, ib. 347 ; The Agincaurt, ib, 279 ; The Amphitrit€, 2 Hagg. 403 ; The Ealing Qrove, tl 16; The Pearl, 5 C. Rob. 224 ; The Westrtwreland, 1 W. Rob. 216 ; The Two Sisters, 2 W. Rob. 125 ; The Roebuck 37 L. T. N. S. 274. * M.S. A. 1854,8.243(2). » Ih. 8. 243 (3). * lb. B. 243 (4) and (5). And as to refosal to return by maritime law: TheBulmer, 1 Hagg. 163. 7 M. S. A. 8. 243 (8). » /ft. 8. 243 (9). » Ib, 8. 186. WAGES. 69 voyage;^ false statement as to name of last or last alleged ship ; * and illness caused by the wilful neglect or default of the seaman himself.^ All these things cause a partial forfeiture of wages. Fines for acts of misconduct,* and the costs incurred in procuring the legal punishment of a seaman/ may also be deducted. Want of exertion to the utmost to save ship, cargo, and stores, in case of the wreck or loss of a ship;® a tender of wages in cash and acceptance of a bill instead ; ^ the promotion, directly or indirectly, of insubordina- tion on board ship ; ^ an engagement under an iUegal contract ; ^ Toala fidea in the management of the ship ; gross misconduct, as distinguished from mere want of judgment or intelligence ; *® particular neglect, the proxi- mate cause of injurious consequences to a ship or the owners ;^^ constant drunkenness, and occasional drunken- ness if accompanied by neglect of duty," may wholly extin- guish a claim for wages. If a seaman on a foreign ship is a plaintiff, it is a good defence that under the terms of his contract of service he is debarred from recovering his wages by the law of the • Ih. 8. 251. « 76. 8. 266. » 30 & 31 Vict. c. 124, 8. 8. « M. S. A. 1854, 8. 256. » lb. 8. 251. • lb. 8. 183. ' The William Money, 2 Hagg. 136. • The Marina, L. R 5 P. D. 254 ; 50 L. J. Ad. D. 33. » The Vanguard, 6 C. Rob. 207 ; The Malta, 2 Hagg. 158. Blockade ranning is not on offence against municipal law : The Helen, 1 L. K Ad. 1 ; The Santissima Trinidad, 7 Wheaton, 340 (A). '• The New Phcenix, 1 Hagg. 98 ; The Gondolier, 3 Hagg. 191 ; The Blake, 1 W. Rob. 73 ; The CamUla, Swa, 312 ; 7. L. T. N. S. 647 ; The Atlantic, Lush. 566; T/ie Joseph Dexter, 20 L. T. N. S. 820 ; The Roebuck, 31 L. T. N. S. 274 ; The Dunmore, 32 L. T. N. S. 340. "' The Dudiese of Kent, 1 W. Rob. 283. » The Exeter, 2 C. Rob. 261 (269) ; The Thomas Worikinqton, 3 W. Rob. 128 ; The Roebuck, 31 L. T. N. S. 274 ; The Macleod, 50 L. J. Ad 6. 70 WAGES. country where the contract was made, or of the flag under which he sails.^ When a master makes a daim for wages or disburse- ments, the owner of the ship can set up any set-off or counterclaim which he may have against him with refer- ence to the ship ; * but, when this course is taken, one or two particular items cannot alone be relied upon, but the general account, if opened at all, must be gone into before the Registrar and Merchants.' And this rule applies as much to a mortgagee who intervenea in the 8uit, or a par- chaser, as to the original owner.^ The right to counter- claim under the Judicature Act^ is given in respect of any matter which may conveniently be disposed of in the pending action : thus, a counterclaim for damages for the loss of a ship through the n^ligence of the master has been held a proper one f and the propriety of the counter- claim will probably be usually determined by limiting it to matters connected with the ship in respect of which the action is brought.^ A recent statute has further enlaiged the powers of the Court by enabling it to rescind any contract between the owner or master and the seaman, upon such terms as may seem just^ Bflstric- No suit for wages under £50 can be brought in the ft^xubi Admiralty Division, unless the owner of the ship is declared High bankrupt, or unless the ship is under arrest or is sold by the authority of the Court, or the case is referred to the Court of Justices, or unless neither the master or owner is or resides within twenty miles of the place where the » The Johann Friedrich, 1 W. Rob. 35; The Nitia, L. R 2 P. C. 38 ; 37 L. J. Ad. 17. > M. S. A. 1854, 8. 191. ' The OleiUanner, Lush. 415. ^ The City of Mobile, L. R 4 Ad. 131 ; 43 L. J. Ad. 41. * O XIX r 3 ! The Sir Charles Napier, L. R. 5 P. D. 73; 49 L. J. Ad. 23. 43 & 44 Yict c. 16, s. 8. WAGES. 71 seaman is put ashore.^ The restriction of actions for wages in the High Court to sums exceeding £150 by a liability to be condemned in costs under the provisions of the County Courts Act, 1868,' has now been taken away by the operation of the Rules under the Judicature Acts.« An action for wages in the Admiralty Division must be commenced within six years after the cause of action has accrued, unless the suitor is under some disability.^ ^ M. 8. A. 1854, 8. 189 ; The Blakeney, 6 Jur. N. S. 4ia ' 31 & 32 Vict. c. 71, 88. 3 & 9. ' See ante^ p. 15. * 4 Aime^ c. 16, as. 17, 18, 19. CHAPTER V. NECESSARIES. Jurisdic- ALTHOUGH from time to time the Court of Admiralty Court ^ claimed a jurisdiction over actions for necessaries, it was decided once for all in 1835^ that it did not passess it. Its jurisdiction, therefore, now rests solely upon the pro- visions of two statutes. These are as follows: " The High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever ... for necessaries supplied to any foreign ship or sea-going vessel, and to enforce payment thereof whether such ship or vessel may have been within the body of a county or upon the high seas when the necessaries were furnished in respect of which such claim was made."* " The High Court of Admiralty shall have jurisdiction over any claim for building, equip- ping, or repairing of. any ship, if at the time of the institu- tion of the cause the ship or the proceeds thereof are under the arrest of the Court . . and over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs, unless it is shown to the satisfaction of the Court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales."* What are The definition of the word necessaries has been judicially * The NeptwM, 3 Knapp, P. C. 94. * 3 & 4 Vict. c. 65, 8. 6. ' A C. A. 1861, 88. 4 and 6. NECESSARIES. 73 sanee. given as " all things fit and proper for the service in which "^^J^ a vessel is engaged, whatever the owner of that vessel as a prudent man would order if present at the time;"^ though pri- marily meaning indispensable repairs, anchors, cables, sails, or provisions,* the term has now, it is clear, a wider signifi- cation. There is no distinction between necessaries for the ship and necessaries for the voyage, and all things reasonably requisite for the particular adventure on which the ship is bound are comprised in this category.^ And money ad- vanced to pay for necessaries, whether in cash or by bill, gives the lender the same rights as if he had actually sup- plied the necessary articles themselves.^ The claim is valid even if the necessaries have been supplied on the personal credit of the master.^ But it is important to bear in mind that as the liability of the owner depends not upon his ownership of the vessel, but upon a contract made with the supplier by the master, who is the agent of the owner, the master must, to make the owner liable, have either an actual authority from him, or have been held out by him as his master, so that the claimant has been induced to supply the necessaries on the credit of the owner .• The following claims have been judicially decided to be va- lid in actions for necessaries, viz. claims in respect of anchors, cables, rigging and things ejuedem generis,'' coals,® pro- visions,® clothing,^^ slops for the crew/^ screw propeller,^* ^ Webster v, Seekamp, 4 B. & Aid. 352. ■ The Sophie, 1 W. Rob. 368 ; The Comtesee de FregevUle, Lush. 329. ' The Riga, L. R. 3 Ad. 616 ; 41 L. J. Ad. 39. • The Onni, Lush. 154 ; The Riga, supra ; The Anna, L. R. 1 P. D. 253 ; 45 L. J. Ad. 98. • The Onni, Lush. 154 ; The Anna, L. R 1 Ad. 253 ; 45 L. J. Ad. 98. • The Great Eastern, L. R 2 Ad. 88 ; 3 Asp. M. C. 5a ' Tha S(mhie, 1 W. Rob. 368. • The West Friesland, Swa. 454. *'iheN. R. Gosfabrik, Swa. 334. " The W. F. Safard, Lush. 69. " The Feronia,L. R. 2 Ad. 65 ; 37 L. J. Ad. 60. " The Heda, 1 Spk. 441. 74 NECESSA&IES. coppering,^ premium of insurance of freight,* money supplied to pay a shipwright's bill,' and dock dues.^ On the other hand, the Court has dismissed claims for money advanced to a master to pay averages,^ and a bottomry bond^ and the travelling expenses of a third person to aid a master in a collision action ;^ and it will also not assist an applicant unless the necessaries in respect of which the action is brought are particularized.^ Preiimi- To render a ship liable in an action she must further be S^ either a foreign ship<» the owner of which may or may not be temporarily in the same port, or a British ship the owner of which is not domiciled in this country,^^ which fact to be a good defence must be proved before judgment, since, if it is subsequently brought to the knowledge of the Court, it will not reverse its previous decree.^^ The necessaries must not have been supplied to a foreign ship in a foreign port;^ but it is now settled law that this rule does not exclude claims for necessaries supplied at a British colonial port.^' In the case of a British ship they must not have been furnished in the port to which she bebngs.^^ The fact that the claimant is the agent of a foreign ship I The Twrliani, 32 L. T. N. S. 841 ; 2 Mar. L. C. N. S. 603. ' The Riga, L. R. 3 Ad. 516 ; 41 L. J. Ad. 39. > The AJhart CW%,L. R3 Ad. 37. * The St Lawrence, L. R. 5 P. D. 250; 49 L. J. Ad. D. 82. * The Aaltje WUUmma, L. R. 1 Ad. 107. ' The Orrni, Luah. 154. ' The Bonne Amelie, L. R. 1 Ad. 19 ; 35 L. J. Ad. 115. ' The Biaoy eupra* * It has been held that a ship beneficially owned by foreignersi bat canying a BritiBh flag and registered as a British vessel when the necessaries were supplied, is a foreign ship : The Prineeee G%arJoK«| Br. & L. 75. » The Pacific, Br. & L. 243.' II Ex parU Michael, L. R. 7 Q. B. 658 ; 41 L. J. Q. B. 349. i> The India, 32 L. J. Ad. 185. » The Wataaa, Swa. 165 ; The Anna, 45 L. J. Ad. 98 ; L. R. 1 P. D. 253; 46 L. J. Ad. 15 (C. A.}. " A C. A 1861, 8. 5. NECESSARIES. 75 in a British poirt does not prevent him from bringing an action against such ship, either for necessaries or for money paid by him to those who have supplied necessaries. But, if the amount sought to be recovered is a mere balance of a general account between principal and agent, the claim as one for necessaries is inadmissible. A co-owner is in the same position as a stranger, if he is not interested in the results of the particular voyage when the necessaries were supplied.^ Persons who have supplied a foreign ship with JAsdb. necessaries have a maritime lien upon her from the moment that the articles are supplied;^ but, under the Act of 1861, there is no such lien on a British ship, and the vessel does not become chargeable with the debt till the suit is actually instituted;^ consequently there can be no claim against a ship which has been sold, even with notice of such a claim in respect of which an action has not been commenced,^ and a want of caution in supplying the necessaries may, it would seem, cause a postponement of claims to others more carefully b^un.^ A bond fide transfer, however, of a foreign ship against which there is an outstanding claim for necessaries to a British owner does not destroy the existing lien,^ which is equally valid after a transfer of a foreign ship to a British owner, and subsequent to the commencement of an action in respect of the necessariea^ It is also a point of some importance that when there exists a valid claim for necessaries, and a bottomry bond on the ship 1 The Underwriter, 26 L. T. N. S.279; 1 Asp. M. C. N. S. 127. s TheEUa A. Clerk, Br. & L. 32 ; 32 L. J. Ad. 211. s The Pacific, Br. & L. 243 ; The Trtnibadour, L, R. 1 Ad. 302 ; ^%e Two Ellens, L. R. 4 P. C. 160 ; 41 L. J. Ad. 33. « The Aneroid, L. R. 2 Ad. D. 189 ; 47 L. J. Ad. 15. • nePanthea, 1 Asp. M. C. N. S. 133; 25 L. T. N. S. 289. • TheEUa A. Clerk,9up.', The PrinceseCharloUe, Br. &h.7d ; 33 L. J. Ad. 188. 76 NECESSARIES. has been given to the person who supplied them in respect of his claim, the latter is merged in the claim under the bond, and any action should be brought in respect of the bond, and not of the necessaries, which would be irregular^ ClaiBM for If the claim is one for building, equipping, or repairing eqaipping, & ^hip, that is, for work done on the ship, and not for ?^ ^^' things supplied for it, she must, when the cause was in- stituted, have been under the arrest of the Court in order to give it jurisdiction.* As shipwrights have at common law a purely posseRsoiy and passive lien upon a ship or article on which their labour has been expended, which from its nature can only be enforced by retaining possession of the thing on which the work has been done,^ and as the effect of the statutoiy law is merely in a certain event to give them a right to sue in the Admiralty Division, it is important if a suit be instituted against a ship that they should, in order to have any priority to mortgagees, be in actual de facto possession of the ship at the commencement of the action.^ The Court has, however, compelled a person with a possessory lien to relinquish it, but whilst so doing it will protect his interests.^ And it is also to be remarked that if a master pays off a material man, or another person advances money for the purpose, the master would have a claim against the ship for disbursements, or the person who advanced the money for necessaries.^ The County Courts have jurisdiction over claims up to £150 for necessaries.^ ^ The EljiU, L. R. 4 Ad. 1 ; 42 L. J. Ad. 43. ■ A 0. Act, 1861, 8. 4. * The Thames Ironwork Co. v. The Patent Derrick Co. 1 John. & H. 93. * The Scio, L. R 1 Ad. 353. • The Harmniie, 1 W. Rob. 178. • The Albert Crosby, L. R. 3 Ad. 37. ' 32 & 33 Vict. c. 71, s. 3. CHAPTER VI. POSSESSION, CO-OWNERSHIP, AND ACCOUNTS. The jurisdiction of the Admiralty Division in actions of TTie juns- possession is exercised for a fourfold purpose : (1) to place the Court. claimants in possession of, (2) or of the earnings of ships to which they may be entitled ; (3) to enable a ship to be employed; (4) to examine accounts between co-owners, and to apportion the earnings after such examination.^ In all these cases, if necessary, the Court can order the vessel the subject of dispute to be sold ; but it is very reluctant to do so at the instance of part owners who do not possess a majority of shares. But, where one plaintiff had agreed to become a part owner, and other plaintiffs also part owners, provided the first plaintiff was appointed master, and he was, after being so appointed, wrongfully dismissed, the Court considered that the defendants had acted so in- equitably that, after giving them the option of purchasing the plaintiff's shares at a valuation, an order was made that the ship should be appraised by the marshal and sold.* Moreover, since all questions as to the title to or ownership of any vessel, or to the proceeds thereof, in the registry, fall within the jurisdiction of this Division, this power of sale is of peculiar use in actions of possession.^ * A. C. A. 1861, 8. 8. The first two divisions chiefly embrace dis- putes between rival claimants ; the third and fourth, disputes be- tween co-owners. * The Ndly Schneider, L. R. 3 P. D. 152 ; 4 Asp. M. C. N. S. 64. » 3 & 4 Vict c. 65, 8. 4. 78 CO-OWNERSHIP. Foreign B^^^ ^ regards foreign vessels, though the Court pos- sesses the same jurisdiction derived from its original powers as a maritime Court, yet it will not interfere in questions touching the o¥niership of foreign vessels, unless with the consent of the parties to the dispute, or of the represen- tative in England of the foreign state to which the ship belongs, and even then with some reluctance.^ Whether a claimant is or is not entitled to the possession of a ship or her earnings, depends wholly upon the facts of each particular case, and the principles of law applicable thereto. A discussion of these principles is quite without the scope of this work, since they concern every branch of law : thus, the right to possession of a vessel may turn upon the question of fraud or no fraud in a sale, as in the recent case of The Harlock,^ which depended on the effect of a fraudulent bill of sale, a matter which involves doctrines of the most general description. Equitable claims and equitable defences are recognised by the Court ; but a distinction has been drawn between the recognition of equities after it has been set in motion by persons claiming legal rights, and allowing its procedure to be used to enforce equities in the first instance.' PoiMflsion The Court will decree possession of a ship to the owners Older to ^^ *^® majority of the shares in her, even if the owners ^ploj of the minority are willing to give security to the owners ^* of the majority, in order that she may be employed for the purpose for which she was built, that is to say, to navigate the seas, not to lie at home unused.^ But at the same time it will compel those to whom possession is 1 Tke See BeuUr, 1 Dods. 24 ; The Martin of Norfolk, 4 C. Rob. 293 ; The Evangelidria, L. B. 2 P. D. 241 ; 35 L. T. N. S. 410 ; The Aainemirtf L. K. 2 Ad. D. 239. The Court refused to interfeie when a British part owner of a foreign vessel moved to arrest it, to obtain bail for safe return : The Qraff Arihwr Benutorff, 2 Spk. 31. 1 The Horlock, L. R 2 P. D. 243 ; 47 L. J. Ad. 6. s The Victoria, Swa. 408 ; The Rose, L. R 4 Ad. 6 ; 42 L. J. Ad. 11 ; and see J. A. 1873, s. 25, sub-s. 11. « The Elizabeth and Jane, 1 W. Bob. 278; The Kent, Luah. 495. CO-OWNERSHIP. 70 allowed to give security to the minority to the amount of their interest.^ To enforce this security the minority Action of must bring an action of Bestraint to prevent the ship from '^ '^^ proceeding to sea until security is given by the other co- owners, to the extent of the plaintiff's interest, for her safe return, to effect which the vessel may be arrested, and a bond entered into payable in default of the return of the ship from her voyage.' But the minority, since they do not contribute towards the expenses of the voyage, cannot share in its profits.^ Owners who do not appear as plaintiffs in such actions are presumed to be content with the posses- sion or occupation of the vessel,^ and to acquiesce in an application for a sale of which notice has been given them.* The Court will order accounts to be taken, either as a Aoootmts step in an action or in a suit having the taking of accounts ^|^^!^^^^ for its sole object,® but they will not be investigated to a later period than the date of the issuing of the writ in the action.^ The Court also will apportion and allot the shares to which claimants may be respectively entitled, or order the ship to be sold and the proceeds divided, or the freight to be brought into Court for the purpose of divi- sion:^ and it often seeks to end disputes between co- ^ The ApoOoy 1 Hagg. d06. * Houston V. Hebden, 1 WiU. 101 ; Tht ApoUo, mp. A mortgagee, miless in poBsesrion, will not be allowed to bring an action of re- Btndnt against the will of a charterer : The InnirfcUlen, L. R. 1 Ad. 72 ; 35 L. J. Ad. 110 ; and a motion before the judge for an cider to this effect is probably as effectoal as an action of restraint. * An. 2 Ch. Ca. 36. « The VcdiarUf 1 W. Bob. 64. When a managing owner did not appear to an action in reniy the Court added him as a defendant under Order XVL, r. 13, but deferred making any order for the sale of the vessel until after the reference and investigation of his accounts : The Native Pearl, 37 L. T. 542 ; 3 Asp. M. C. 515. » The AUnmi, 6 L. T. 164 ; 1 Asp. M. 0. (O. S.) 206. * The Idas, Br. & L. 65. ' The Eider, 40 L. T. 463 ; 4 Asp. M. C. 104. > The Meffgie, L. R. 1 Ad. 77. The Court has power to order the sale of a ship the property in which becomes by death or marriage vested in a person not Qualified to be the owner of a British diip : A. C. A. 1861, s. 12 ; M. S. A. 1854, ss, 62, 63, 64, 65. HO CO-OWNERSHIP. owners by giving the majority the option of buying the shares of the minority at a valuation, so as to prevent the necessity for a sale of the ship. The Court has jurisdiction over the interests of persons who are not co- owners at the time of the commencement of the action, if it arises out of a previous co-ownership in which they were concerned.^ Its jurisdiction is exercised as liberally as possible ; thus, in an action for a sale of the ship and an investigation of the accounts, the Court has allowed a counterclaim for damages alleged to have been sustained by the defendant co-owners by a wrongful act of the plaintiffs in the management of the ship to be investi- gated.^ And when a master, who was a part owner, was suing for his wages, the defendants were allowed to set up a counterclaim in respect of the co-ownership accounts, and to Have them investigated in the action for wages.' The Court will also, if necessary, appoint as receiver some independent person.* Restita- When goods have been piratically seized and after- Siipe'or wards recovered, the Court will order their restitution to goods their original owners if they apply within a reasonable pirates. time, even though they may have come into the hands of a third person.* And, if the ship of a pirate has been transferred to a boTui- fide purchaser for valuable consideration, and has not been taken by the pirate from other persons, it will, if seized by the Crown, be restored by an order of the Court to such purchaser.® » The Lady of the Lake, L. R. 3 Ad. 29 ; 39 L. J. Ad. 40. • The Ceylon, 18 L. T. N. S. 417. • The City of Mobile, L. R. 4 Ad. 191 ; 43 L. J. Ad. 41. • The Ampthia, L. R. 5 P. D. 226. » Bacon*8 Abridgment, art. Piracy, voL vi. p. 173, 7th ed. ; The Hercules, 2 Dods. 253. « The Telegrapho, L. R. 3 P. C. 673 ; 40 L. J. Ad. 18. CHAPTER VII. MORTGAGE. The Admiralty Division, which possessed no original The jurw- jurisdiction over mortgages of ships,^ has now hy statute the Court jurisdiction in respect of any mortgage duly registered according to the provisions of the Merchant Shipping Act, 1854, whether or not the ship or proceeds are under the arrest of the Court.* But, if any ship, such as a foreign one the mortgage of which is unregistered, is under the arrest of the Court, or the proceeds have been brought into the registry, then a jurisdiction is founded.' By a mortgage the mortgagee acquires a right to the ownership of a vessel in a certain event, since it is a transfer of all the mortgagor's interest by way of security for the repay- ment of a loan,* it having been enacted that meanwhile a mortgagee by reason of his mortgage shall not be deemed to be the owner of the ship, nor shall the mortgagor be deemed to have ceased to be the owner of such mortgaged ship, except so far as may be necessary for making it avail- able as a security for the mortgage debt.* The mortgagee 1 The Neptune, 3 Ha^. 129 (132). * A. C. A. 1861, 8. 11. As to registration of mortgages, see M. S. A. 1854, 68. 66—75 ; and M. S. A. 1862, s. 3. ' 3 & 4 Vict c. 65, 8. 3. Such an arrest must be de Jure as well as de facto : The Evangeliatria, 35 L. T. N. 8. 410; 46 L. J. Ad. ; 1 L. R. 2 P. D. 241 ; Tayler v. Caryl, 20 Howard, 583 (599) (A.). * Keith V. Burrows, L. B. 1 C. P. D. 722 ; 45 L. J. C. P. 1876 ; L. B. 2 C. P. D. 163 ; 46 L. J. C. P. D. 452 ; 46 L. J. C. P. (fl. L.) 801 ; L. R. 2 App. Gas. 636. * M. S. A. 1854, 8. 70. G 82 MORTGAGE. becomes entitled to the freight due when he takes actual or constructive possession of his security ; he cannot, there- fore, recover back from the mortgagor any freight which he has allowed him to receive since the date of the loan, Rights of and before he takes possession.^ Nor can the charterers ^®"' take from the freight payable by them any sum in respect of advances which the master has agreed shall be deducted from such freight, for the sum which it is agreed by the charter-party shall be advanced and taken from the freight is the only amount by which the freight may be reduced.* Meanwhile the mortgagor retains all the rights and powers of ownership, and his contracts in relation to the ship are valid as against the mortgagee so long as they do not im- pair the value of his security ; therefore, if a ship under charter is arrested at the suit of a mortgagee, the charterer on motion will obtain an order for its release.* But, if his interests are likely to be prejudiced, the Court will exercise its equitable powers by permitting the frilfilment of such contracts only on certain terms : anything, however, which is at all an attempt by the mortgagee to get better terms from the mortgagor by invoking the aid of the Court will not be countenanced by it. The burden of satisfying the Court that the mortgagee's security will be impaired rests on him, and must be shown by very satisfying evi- dence. It follows, therefore, if a mortgagee arrests a vessel, and cannot then prove that his security will be lessened, that the Court on motion by the owners or charterers will order the release of the ship, generally with costs, it may be even with damages, against the mortgagee.* 1 Liverpool Marine Co. v. Wilson, L. R. 7 Ch. 507 ; 41 L. J. Ch. 798 ; Wilson v. Wilson, L. R. 14 Eq. 32 ; 41 L. J. Ch. 423. « Tanner v, Phillips, 42 L. J. Ch. 126 ; 27 L. T. 717. » Collins V, Lamport, 4 De G. J. & S. 500 ; 34 L. J. Ch. 196 ; The InnisfaUeny L. R. 1 Ad. 72 ; 35 L. J. Ad, 110 ; The FanchM^ L. R 5 P. D. 173 ; 42 L. T. 483. * The Maxima, 39 L. T. 112 ; 4 Asp. M. C. 21 ; l%e Cathcart^ L. R. 1 Ad. 314. MORTGAGE. 83 Although it has been enacted that a mortgagee of a The righto British ship only becomes the owner for the purposes of gageee. the mortgage, so that he may be protected from claims for which he would otherwise be liable as owner in possession/ yet the mortgage gives him a right, as has been pointed out, to the actual possession of the ship at any time for the purposes of his security. Accordingly, though mortgages may be unregistered, or registered according to the provi- sions of the Merchant Shipping Act, 1854, yet an unregis- tered mortgage is good against all persons except registered transferees and mortgagees. Accordingly, as between two unregistered mortgagees, or an equitable mortgagee and the assignee of the freight, the first in time would have the first claim to the ship and freight ; and, as between a mortgagee of the freight and an unregistered and subse- quent mortgagee of the ship, the latter would have the first claim to the ship and freight. But, as between a registered and unregistered mortgagee, the former, though he may be last in point of time, is first in point of rank.^ But, since after a first mortgage the legal right to the ship has passed to the mortgagee, if there then comes an equitable mortgagee of the freight (though the first mort^ gage carries with it the legal right on taking possession to the freight) ; and, next, an equitable or second mortgagee of the ship, without notice of the mortgage of the freight, the last two incumbrancers would take according to the time of their securities, because the last equitable mort- gagee takes subject to all equities which are prior to his own. Yet, if the first mortgagee of the ship is also the subsequent mortgagee of the freight without notice of any 1 Dickinson v. Kitchen, 8 £. & B. 789. > Keith V. Burrowa, L. R 1 C. P. D. 722; 46 L. J. C. P. D. 876 ; L. R. 2 C. P. D. 163 ; 46 L. J. C. P. D. 452 ; L. R. 2. App. Cas. 636 ; 46 L. J. C. P. D. (H. L.) 801. Thejudgment of the House of Lords in this case does not appear to conflict with the dicta of the Court below on the priority of mortgages, and turned solely upon whether a certain sum could be considered as freight : see, too, Wilson V. Wilson, L. R. 14 Eq. 32 ; 41 L. J. Ch. 423. q2 84 MORTGAGE. intervening charge, his claim to the freight is a prior right to that of the second mortgagee of the ship.' The Court A mortgage of a British ship must be in the form pre- equiuble Bcribed by the Merchant Shipping Act, 1854. An im- remedies. finished ship, incapable of registration, can be equitably mortgaged by the deposit of the builder's certificate.* The G)urt will act' on equitable principles in adjudicating upon cases of mortgage ; thus, it will look behind the register, so as to discover the real character of the transaction, so that what is on the face of it an absolute transfer may be treated, if such was the intention of the parties, as a mort- gage.' And on the same principle equities will be enforced between the parties to a mortgage, all transactions which have taken place, as well as the registered documents, being fully considered f and equally also the Court will correct mistakes,^ as, when a receipt for the mortgage money was indorsed on the mortgage by mistake, and the mortgagees had sold the ship, the Court made a decree that the pur- chaser was entitled to the possession of the ship. A mortgagee, having no maritime lien on a ship, ranks after all claimants against her except those who have supplied necessaries to British ships, since a mortgage is a valid charge on a vessel from the day when it is given, whilst the ship is not chargeable with a debt for neces- saries until the suit is actually instituted.^ 1 The Liverpool Marine Credit Co. v. Wilson, L. R 7 Ck 507 ; 41 L. J. Ch. 798. * Ex parU Winter, L. R. 20 Eq. 746 ; 44 L. J. Bank. 107. * The Innuf alien, L. B. 1 Ad. 72 ; 35 L. J. Ad. 110. * The Cathcart, L. R 1 Ad. 314 ; M. S. A, 1862, 8. 6. > The Raee, L. R 4 Ad. 6 ; 42 L. J. Ad. 11 ; and see also J. A. 1873, 8. 25, 8ub-8. 1]. ■ The Two £lUti8, L. R. 4 P. C. 161 ; 41 L. J. Ad. 33. CHAIT^ER VIII. BOTTOMRY AND RESPONDENTIA. Bottomry is a contract in the nature of a mortgage by The oon- which money is borrowed to be applied to the necessities bottomry. of a ship. The keel or bottom of the ship (a part signify- ing the whole) and the freight which it will earn and the cargo on board is the security thereby given for the repay- ment of the sum lent, together with interest. Both prin- cipal and interest are forfeited if the ship is lost on the voyage. But no property passes as by mortgage, and no possession is given as by a pledge.^ Respondentia is a similar contract The security here Of retpon- is only the cargo laden on board,* and the money is raised ^ for the necessities of the cargo only. Over questions relating to bottomry and respondentia bonds, the Admiralty Division has almost sole jurisdic- tion,* but the power of the Court to enforce a bottomry bond (under which term we include a respondentia bond) depends of course on its validity. The elements of such The form validity are not numerous. But, firstly, the contract must TOntmct 1 Stainbank v. Shepherd, 13 C. B. 418 (441). s Thtt Caigu €X Sultan, Swa. 510. ' Stainbank t. Shepherd, 13 C. B. 418 (444) ; Johnaoii i;. Shippen, 1 Salk. 34 ; The Caigo ex Sultan, Svira. 510 ; 5 Jur. N. S. 1060. The Court of Chancery used sometimes to give relief on bottomry bonds, but it ia becoming less and less frequent to invoke the aid of that Division ; and as under the Judicature Act, 1873, s. 24, equitable remedit^ are to be administered in every Divi:»ion, the AdmiR<y should be as efficient a tribunal as the Chancery Division. 86 BOTTOMRY AND RESPONDENTIA- be in writing,* and the original bond on which the action is founded must be brought into Court.* In form it is generally a bond, but it may be in any shape so long as its essential particulars are set forth.' These are, the parties to the contract ; the amount of the loan ;* the premium or interest agreed upon ; the name of the ship ; the voyage during which the risk is to be incurred; the fact that the repayment of the loan depends on the safe arrival of the ship at her destination ; and that the vessel, her apparel, and furniture are hypothecated for the loan. The voyage,* and the fact that the lenders are incurring maritime risk, must appear on the face of the contract in order to make it valid.^ The remaining elements must also appear, since they can only be proved by the document itself. The instrument will receive as liberal a construc- tion as possible from the Court.^ But a bond may be good as to one part and bad as to another ; the bad, so long as it is not material to the existence of the contract, does not invalidate the good part,® and the Court will enforce those portions which it can uphold,® if the advances touched by them are not of too trivial a character.^® If necessary the claim can be referred to the Registrar and Merchants, who will examine the items in respect of which 1 Ex parte Halkett, 19 Vesey, 474 ; The Mary Ann, L. R, 1 Ad. 13. « The Eomna, 37 L. T. N. S. 366^ 3 Mar. L. C. N. S. 606. ■ The Kynnersley Castle, 3 Hag^. 1 ; The Mary Ann, L. R. 1 Ad. 13. ^ It ia advisable, but not necesnary, to state reasons for such a loan ; for nece^ity is the foundation of such a bond, though not of the esHence of the contract. • Western ». Wildy, Skinner, 162 ; Williams v. Steadman, Holt, 126 ; The Jane, 1 Dods. 461. ' But it is sufficient if this fact can be collected from the document as a whole : The Nelson, 1 Hagg. 169 ; The Mmancipatton, 1 W. Rob. 124 ; The Royal Arch, Swa. 281. 7 The Kynnerdey Castle, 3 Hagg. 1 ; The Vibilia, 1 W. Rob. 6 ; The Kamak, L. R. 2 Ad. 289 ; 18 L. T. N. S. 661. 8 The Augusta, 1 Doda. 283 ; The Staffordshire, L. R. 4 P. C. 194 (209) ; 41 L. J. Ad. 49. • The Edmond, Lush. 57 & 211 ; 27 L. J. Ad. 76. w The Empire of Peace, 39 L. J. Ad. 12 ; 21 L. T. 763. BOTTOMRY AND RESPONDENTIA. 87 the bond was given, and such of these as are not properly matters in respect of which a bond should be given by a master w:ill be deducted, and the amount of the bond will then be pronounced for less such deductions,* or if all the charges are improper the Court will hold it invalid.* Further, it should be borne in mind that, even when a bond is pronounced for, this does not generally determine the actual amount of money to which the bondholder is entitled ; it is merely a declaration that the bond itself is valid.* And it is, therefore, sometimes necessary, when the question of necessity depends on the amount of items of accounts said to be due by the ship in the place where the hypothecation took place, to order a reference before deciding upon the validity of the bond/ Next, as regards the subject of the loan. Both the ship and freight may be bottomried, but the What may freight must be that to be earned in the particular voyage ^^ ™" during which the maritime risks are to be incurred, not that which may accrue from a subsequent voyage,^ and an hypothecation of freight will include that received from sub-shippers of goods by the actual charterers.* The cargo may be hypothecated, but only for its own benefit f yet since the master does not become the agent of the owners of the cargo until it is placed on board, this must be done before it can be hypothecated.® The master is usually the person who borrows money Borrowera. on bottomry, and he has a right so to borrow, as between himself and the world at large, if he is the apparent master, 1 The Edmonds Liiali. 57 & 211 ; and see The Cai^o ex StUtan, Swa. 510, where part only of the cargo was exposed to risk, and where the owners had to pay only sach a proportion of the bond as the part of the cargo exposed bore to the whole cargo. * The Roderick Dhii, Swa. 177. * The Caiherine. 3 W. Rob. 3. * The Roderick Dhu, Swa. 177. » Th^ Staffirrdshire, L. K. 4 P. C. 194 ; 41 L. J. Ad. 49. * The Eliza, 3 Hagg. 87. ' The Oratitudiney 3 C. Rob. 240. ' The Jonathan Goodhve^ Swa. 355 ; The Olenmanna, Lash. 115. 88 BOTTOMRY AND RESPONDENTIA. Lenders. though he may not have this right as between himself and the owner of the shipJ The owner of a British vessel may give a bottomry bond if both he and his vessel are at a foreign port, but not if they are at a port in this country.* Any person may lend money on bottomry ; but a ship's agent, occupying as he does an exceptional relation to the ship, must, in order to lend with validity, give notice to the master that he cannot reasonably allow the owners credit beyond a certain limit, and will only supply more money on the security of a bond.* But the consignees of a cargo may lend money on a bond on the ship, if it were reasonable under the circumstances that they should secure themselves for advances.^ A creditor cannot take a bond for his own subsisting debt, though he may for money which he has advanced to pay other parties, so as to relieve the pressing necessities of the ship.^ The locality where the bond is given does not affect the validity of the contract, if otherwise good f thus, when the master of a Scotch vessel gave a bond at Pljrmouth, the owner having died insolvent, and there being no other means of obtaining funds for the needs of his ship, it was held to be a lawful transaction. The necessity for hypothecation is the foundation of the bond,^ that is, money must be required solely and indis- bottomry, pensably for the wants of the ship or of the cargo, in order that the particular voyage on which the vessel is bound may be continued.® Necessity in relation to bottomry has received this judicial definition : " A combination of events ^ The Janey 1 Dods. 461 ; The Oi-elia, 3 Hagg. 75 ; The Mary Ann^ L. R 1 Ad. 13. > The Duke of Bedford, 2 Hagg. 294 ; The Helgoland, Swa. 481 ; 6 Jur. N. S. 1179. » The Hero, 2 Dods. 143 ; The Staffordihire, L. R. 4 P. C. 194 ; 41 L. J. Ad. 49. * The Alexander, I Dods. 278. » The Ida, L, B., Z Ad. 642 ; 41 L, J. Ad. 85. • Th£ Trtdefit, 1 W. Rob. 29. ' The Nelson, 1 Hagg. 169. The Omanlij 3 W. Rob. 198 ; 14 Jur. 93. Necessity the foun- dation of BOTTOMRY AND RESPONDENTIA. 89 which would prevent the completion of the voyage with profit unless money should be raised by bottomry.'' ^ This principle may be explained by Dr. Lushington's dictum, which is of a more concrete character : '* All the charges in respect of the ship or crew from the time she entered port, including the unloading of the cargo, being necessary charges to enable the ship to proceed on her voyage, and being charges for which the owner or master were liable, are expenses to defray which a bottomry bond may be given." 2 If the ship could have continued her voyage without such a loan, the bond is void. Bearing this rule in mind, the existence of this necessity must depend on the facts of each particular case, as proved by ordinary evidence.^ The following instances will exemplify the rule : A bond was held invalid in respect of sums due to a creditor who had previously furnished necessaries on personal credit ; ^ in respect of exorbitant comtnissitm charged by the ship's agent,^ for charges relating to outward cargo unless the ship was liable to arrest for them ; ® and for insurance.^ On the other hand, bonds liave been pronounced for when given to obtain the release or to prevent the arrest of a ship in a foreign port ; ^ when executed after advances have been made, if in pursuance of an agreement for bottomry, or in contem- plation of such a security,^ and for the fees of a consul abroad.^^ It should be further noted that whilst it may be lawful 1 The Kamak L. R. 2 P. O. &05 ; 38 L. J. Ad. 57. s Tht Edmonds Lush. 211 (220). ' Tkt Kaniakf sup, * The Auffiuta, 1 Dods. 283 ; The North Star, Lush. 45 ; 29 L. J. Ad. 73 ; The Kamak, L. R. 2 Ad. 289. » The Roderick Dhu, Swa. 177. ' The Edmondy Lush. 57 and 211 ; 27 L. J. Ad. 76. ' The Serafina, Br. & L. 277. » The Prince George, 4 Moo. P. C. 21 ; The Lamel, Br. & L. 191 ; 33 L. J. Ad. 17. » The Kamak, L. R. 2 Ad. 289 ; 18 L. T. N. S. 661. ^^ The Zodiac, 1 Hagg. 320. 90 BOTTOMRY AND RESPONDENTIA. to give a bond to enable a ship to proceed on a new voyage, if she is at a foreign port, and must otherwise be idle, yet a bond for a new voyage from a home port would clearly be invalid.^ Imposai- Assuming that the money is required for the necessities obtahiLg of ^hi® ship, the second element of necessity is the impos- ^^^ sibility of obtaining funds in any other manner than by the hypothecation of the ship, freight, or cargo. It is a pure question of fact, whether money could have been procured by any other means, for if personal security is available the bond is invalid.^ But small sums lent con- trary to this and the preceding rule will not be excluded, for it is not in the interest of commerce to be too careful of insignificant details.^ Communi- The consent of the owners raises a legal but rebuttable ^^^,1^ presumption of necessity.* Consequently, communication with them by the master before hypothecation, where it is possible, is absolutely required in order to establish the validity of a bond ; '^ and a separate communication with the owners of the cargo, where reasonable, is also absolutely necessary.® Both in communications with the owner of the ship or with the owner of the cargo, the fact that the ship or cargo must be hypothecated, or the intention of the master to raise money by this means, should be actually stated, not necessarily in so many words, but with such clearness that the fact or intention is plainly apparent to the owners. » The Royal Arch, Swa. 269 (276). « The Hero, 2 Dode. 139 ; The Empire of Peace, 39 L. J. Ad. 12 ; 21 L. T. N. S. 763. » The Trident, 1 W. Rob. 29. * The Royal Arch, Swa. 269. » The Hamburg^ Br. & L. 253 ; The Gratitudine, 3 C. Rob. 240 ; The Lizzie, L. R. 2 Ad. 254 ; 19 L. T. N. S. 71 ; The Panama, L.R2P. C. 199; 39 L.J. Ad. 37; The Onward, h.B^ 4Ad.38;42 L. J. Ad. 61. • The Lizzie, L. R. 2 Ad. 264 ; 19 L. T. N. S. 71 ; The Kamak, L. R. 2 Ad. 289 ; 37 L. J. Ad. 41 ; The Hamburgh, 2 Moo. P. C. N. S. 289 ; Br. & L. 253. BOTTOMRY AND RESPONDENTIA. 91 Thus, the mere statement of serious injuries to a ship, which render considerable and expensive repairs neces- sary, is not a sufficient intimation that money must be raised by a bottomry bond, so as to make one given after such a communication valid.^ The absence of such reasonable inquiries by the lender Duties of as are within his power will invalidate the bond.* Such ^ ^' inquiries must be as to the need of money for the ship, the impossibility of obtaining it save by bottomry, and communications by the master to the owners.^ The repayment of the loan must be contingent on the safe Repay- arrival of the ship,* otherwise it is not a contract of hot- lo^ ^ tomry, and the Admiralty Division has no power to enforce it. The loan is repayable in the case of a con- structive total loss,^ as where the ship has been sold at an intermediate port® or lost after deviation, and is only gone when there is an absolute and actual total loss of the ship or cargo at sea ^ or by capture of an enemy.® It is usual for the borrower to pay interest on the Interest sum lent ; this is at a rate higher than is usual in the case of ordinary loans, in consequence of the maritime risk which the lender incurs. When a dispute arises as to the validity of the bond, the absence or presence, the small or large amount of interest, are circumstances which are always considered important evidence. Thus, a low premium raises a strong presumption against the validity of the bond.* If the interest is exorbitant, the Court will » The Onward, L. R. 4 Ad. 38 ; 42 L. J. Ad. 61 ; Kleinwort v. Cassa Maritima of Genoa, L. R. 2 App. Cas. 156 ; 36 L. T. 118. • The NeUon, 1 Hmc. 169 (176); The Prince of Saxe Goburg, 3 Hagg. 287 ; The Faithful, 31 L. J. Ad. 81. ^The Hamburg, 32 L. J. Ad. 161 ; Br. & L. 263. « The Atlas, 2 Hasg. 49. • Broomfield v. l£e Southern Insurance Co. L. R 5 Ex. 192 ; 39 L. J. Ex. 186. • Western v. Wildy, Skinner, 152. ' TheGreat Pacific, L. R 2 P. C. 516 ; 30 L. J. Ad. 45. • Joyce V, Williamson, 3 Doug. 164. • The Emancipation, 1 W. Rob. 124; The Bmfol Arch, Swa. 269 (286). 92 BOTTOMRY AND RESPONDENTIA. reduce it to a proper rate.^ The fact that no premium is agreed upon will not necessarily invalidate the bond, if otherwise good ; but the Court will, if it pronounce for the bond, refer, if necessary, the question of the amount of interest to be paid to the registrar.* The rate usually sanctioned from the time at which the bond becomes due until it is paid is four per cent' In some in- stances attempts have been made to enforce payment of extra interest, or of a premium in respect of any time which thus elapses. The Court has, however, never allowed more than four per cent, to be charged against the cargo- owners, and if the shipowners were to refuse to pay a higher rate their contention would no doubt be upheld, as the master has not authority to bind them to pay un- usually high interest after the maritime risk has ceased.^ Bond M A bond may be given as a collateral security if all the ^^p^y circumstances required to establish its validity are present.* The usual practice in such cases is for the bond not to be put into effect if the bill of exchange is duly paid. Even in such instances the bond is really the primary security, for without it the bill would not in all probability be given. The sum lent may be insured by the lender.® Delay in Delayi enforcing a bond postpones it to the claims of those who have pursued their rights with diligence, and will, if very gross, altogether avoid the bond.^ On the other hand, there should not be an undue haste in enforcing it ; thus, when a bond was payable seven days after the arrival of the ship, and the bondholder instituted a suit before that ^ The Buntley, Lush. 24 (reduced from 40 per cent); The Heart of Oak, 1 W. Rob. 205 (215). > The Change, Swa. 240. » The CecUie, L. R. 4 P. D. 210 ; 40 L. T. 200. * The S&phia Cook, L. R. 4 P. D. 30 ; 49 L. J. Ad. 16. » The Stafford4iire, L. R. 4 P. C. 194 ; 41 L. J. Ad. 49 ; Tfce Onward, 42 L. J. Ad. 61 ; 28 L. T. N. S. 204. * The Iiidofnitable, Swa. 446. It is doubtful if an agreement by which the borrower insores for the lender does not vitiate the con- tract, as the risk is not then incurred. 7 The Indomitable, Sw& 446. BOTTOMRY AND RESPONDENTU. 93 time had elapsed, the shipowner, on paying the amount of the bond with interest into Court, obtained the condemna- tion of the bondholder in the costs of the proceedings.^ But an agreement whereby payment is postponed, though it may be legally valid, cannot be enforced by the Admiralty Division, in pursuance of its peculiar jurisdic- tion.* Whilst the Admiralty Division recognises the negotia- bility of bottomry bonds, it aids their transfer with reluct- ance.^ It has enforced an agreement for a bond.^ Again, when freight was hypothecated for a certain sum, and the vessel earning it was lost by a collision with another ship, and a sum in respect of such freight, less the cost of completing the voyage, was recovered as part of the damages from the other ship, the Court ordered the owners to repay to the lenders the proportion of the loan which the amount recovered bore to the whole freight The ground of this decision, though not stated in the judg- ment, apparently is that the freight having in fact been received, the loan should in equity be repaid, the subject- matter of it not' being in fact lost.^ It is an essential element of a bottomry bond that it I^en. confers a maritime lien on its subject for the amount lent and for the interest agreed on. The law by which the contract of hypothecation is to be Oovemed governed has been held to be the general maritime law.* tmw Uwr. Thus a communication with the owners previous to the making of a bond was expressly decided to be necessary 1 The Eudara, L. R. 4 P. D. 208; 48 L. J. Ad. D. 36. s The Royal ArtJi, Swa. 260 (282). There seems to be no leason why delay, so Ions as no one's rignts are prejudiced thereby, should invalidate the ri^ts of the lender. See The Helgoland^ Swa. 491 (499); The Rebecca, 5 C. Rob. 102. > The Rebeccoy 5 C. Rob. 102. * The Aline, 1 W. Rob. Ill (120). » The Empuea, L R. 5 P. D. 6 ; 48 L. J. Ad. D. 36. • The Bonapartey 8 Moo. P. C. 459 ; The Hamburg, 2 Moo. P. C. N. S. 290; Br. & L, 253 ; The Onward, L. R. 4 Ad. 3« ; 42 L. J. Ad. 61. 94 BOTTOMRY AND RESPONDENTIA. on this ground. The case of Lloyd v. Guibert* no doubt contains expressions adverse to the decision of questions by such a maritime law, and even to its existence, and tends to show that a bottomry bond should be governed by the law of the flag. As this decision was not, how- ever, upon a bottomry bond, but upon a contract of affreightment, and as the previous case of The Hamburg has been recently directly approved in the Admiralty Division, the decision of the Privy Council must be con- sidered as laying down the existing rule.* ^ Lloyd V. Qaibert, L. R. 1 Q. R 115 ; 33 L. J. Q. B. 241. > The Gaetano t Maria (Nov. 1881), 45 L. T. N. S. 510. CHAPTER IX. Section L Forfeitvbre of Ships. A SHIP is forfeited to the Crown if (a) anyone uses the Forfeitupe British flag, or assumes the national character on board ' ^ any ship owned wholly or in part by anyone not legally entitled to own a British ship; or (b) if the owner or master does any act or permits papers to be carried with intent to conceal the British character of the ship; or (c) if any unqualified person obtains a legal or beneficial interest in a British ship ; or (c2) if any person makes a false declaration touching his qualification for the owner- ship of British ships ;^ or if the master or owner of a ship uses or attempts to use a certificate of registry not legally granted in respect of it.* To carry out these rules, any commissioned officer on full pay, or any British officer of customs, or any British consular officer, may seize such ship, and then proceed by an ordinary action in the Admiralty Division to obtain a declara- tion that the ship shall be forfeited to the Crown. The right of the Crown to have a ship forfeited arises at the instant when the wrongful act is done, and like a maritime lien clings to the ship, so that it overrides the 1 M. S. A. 1854, 8. 103 ; The Sceptre, 35 K T. N. S. 429. • M. S. A. 1854, 8. 52. 96 REMOVAL OF MASTER. right of a subsequent bond fide purchaser without notice of the fraud .^ Section IL Removal of Master, Removal The Court has power to remove the master of a British of master. • . .-i ^^ j.* i^ i ship on the application of an owner, part owner, consignee, agent of the owner, certificated mate, or one-third of the crew, when it is proved by oath that such removal is necessary.* The amount of necessity to cause this power to be exercised is a matter wholly for the discretion of the judge ;* for example, a master was removed for fraudulent breach of trust. A new master may be appointed by the Court in place of one who has been removed, with the consent of the owner, agent of the owner, or consignee of the ship, if within the jurisdiction of the Court. If they are without the jurisdiction, then the judge may appoint the new master on his sole responsibility. The Court has also jurisdiction, — if the applicant shows a valid registered title to the vessel, — ^to order the former 1 WilkinB V. Despard, 5 T. R. 112 ; The AnvadaU, L. R. 2 Ad. D. 179 ; 36 L. T. N. S. 259 ; 46 L J. Ad. D. 68. Affirmed on appeal, L. R. 2 Ad. D 218 ; 37 L. T. N. S. 139 ; 47 L. J. Ad. D. 3. ^ M. S. A. 1854, B. 240. Any Court having AdmiiHlty jurisdiotion in any of her Majesty's dominions may, upon application by the owner of any ship being within the iurisdiction of such Court, or by the part owner or consignee, or by the agent of tiie owner, or by any certificated mate, or by one-third or more of the crew of such ship, and upon proof on oath to the satisfaction of such Court that the removal of the master of such ship is necessary, remove him accord- ingly ; and may also, with the consent of the owner or bis agent, or the consignee of the ship, or if there is no owner or agent of the owner or consignee of the ship within the jurisdiction of the Court, then without such consent, appoint a new master in his stead ; and may also make such order, and may require such security in respect of costs, in the matter, as it thinks fit. * The Francee, 2 Dods. 420 ; The Roycdiit, Br. & L. 46. INJURIES INFLICTED BY PERSONS ON THE HIGH SEAa 97 master to deliver up the certificate of registry and the ship's papers.^ Section III. Actions for Injuries inflicted by Persona on the High Seas. The Admiralty Division possesses in virtue of its ancient TTie juris- ... ••«•!• A ..• a" • diction of maritime junsdiction power to entertain actions tn perso- ^^ Court nam for injuries inflicted hy one person to another on the high seas. It is a jurisdiction which, though it exists, is not at the present day employed, but which nevertheless cannot be considered as obsolete.^ * The St. Olafs, L. R 2 Ad. D. 113; 35 L. T. N. S. 429. ' The Ruckers, 4 C. Rob. 73. CHAPTER X. THE ORDER OF CLAIMS. General It is a primary principle of Admiralty Law that Kens ex contractu rank against the res in the inverse order of their attachment, on the ground that the last act in respect of which the latest claim arises being a service to those who have anterior claims is entitled to rank before such claims.^ Wages, however, usually rank before every other claim ew contractu, such as may aris6 from bottomry bonds, mort- gages of the ship, or the supply of necessaries ;* and, as will b^ pointed out later, there are also some other excep- tions to this principle, the question when difficulties arise being governed by the lex fori? As regards claims for damage and salvage, and claims ex contractu, both rank before the latter species of claim,^ and as regards life salvage and salvage of property, claims in respect of the former service take precedence of the latter kind.* It has never been judicially decided whether a salvage claim which is created subsequent to the date when a claim for damages arises takes precedence of this claim. 1 The Cargo ex GcUavf, Br. & L. 167 ; The WiUiam F. Safftyrd, Lush. 69. « The UnioHy Lush. 128. » The Union^ Lush. 128. * The Linda Flor, Swa. 309 ; The Berutres, 7 No. of Gas. L. (damage) ; The Gustaf, Lush. 506 ; 31 L. J. Ad. 207 ; I%e SeUfia, 2 No. of Cas. 15 (salvage). * M. S. A. 1854, 8. 459 ; The Coromandel, Swa. 205. THB ORDER OF CLAIMS. 99 But on principle the salvors should take precedence, because they have preserved the property on which the damage lien exists, and without their services the lien of those whose ship has been injured might never be even partially satisfied. For somewhat similar reasons it has been decided that the holder of a bottomry bond given in respect of monies advanced to repair a vessel on wliich a damage lien already exists, has a right against the accre- tions in value of the ship caused by the repairs on which the sum advanced has been laid out, and that the right of the claimant in respect of the damages caused by such ship extended only to repairs done by the owner at his own expense.^ As regards claims by holders of bottomry bonds, where Bottomry there are two or more bonds, they rank according to the main rule, the last having precedence, and so on, to the first in the order of time,^ unless the holders of bonds of different dates have acted in concert and privity as though they were the lenders of one sum, when their claims will be paid pro raid? If a bond is given upon ship, freight, and cargo, the proceeds of the ship and freight must be exhausted before the cargo can be touched ;^ and on the same principle, if of two or more bonds the latest is on ship, freight, and caigo, and the others on ship and freight, the last must be paid out of the ship and freight, even though by so doing the other bonds will not be satisfied.^ When the cargo alone is hypothecated, the ship and freight will, though not mentioned in the bond, become liable before the cargo can be touched,^ because the former are the primary resources to pay a bottomry bond, and « * The Aline, 1 W. Rob. 111. ' The Eliza, 3 Ha^. 87. ' The Exeter, I C. Rob. 173. * The Bonaparte, 3 W. Rob. 292. * The PrisciUa, Lush. 1 ; 1 L. T. N. S. 272. * The Oratitudine, 3 C. Rob. 240 (204). U 2 100 THE ORDER OF CLAIMS. when a bond on the cargo alone was inteimediate between two on the ship only, the holder of this instrument was held to have the first claim against the freight and cargo, contrary to the usual principle as to time, for the lenders on the security of the ship might have specifically mentioned the freight and cargo so as to give them a claim against these as well as the vessel.^ When the ship and freight belong to difierent persons they will usually bear a rateable proportion of the payment of the bond.* When a bondholder and a master make claims against a ship and freight and cargo, the claim of the master, if bound personally by the bond, will be postponed to that of the bondholder, unless the latter can be postponed without prejudice to his rights, as by allowing his claim to be satisfied from the cargo.^ But if the master has not so bound himself then his rights are superior to those of the bondholder.* Neces- Again, though wages earned before and after the ^ving of a bottomry bond take precedence of it,* yet this nile has been held not to extend to a case where the bond was given on a voyage subsequent to that on which the wages were earned.® It may be, however, that a reason for this practice will be found in the fact that there has been an absence of due diligence in enforcing the claim for wages. And claims for general average against a cargo upon which the master has a possessory lien rank before bottomry bonds.^ As regards necessaries, those who have supplied foreign ships with necessaries have a lien for their claim,® * The Conatancia, 4 No. of Ca. 285. « The Dowthorpe, 3 W. Rob. 73 (81). « The Edward Oliver, L. R. 1 Ad. 379 ; 36 L. J. Ad. 13 ; T^ Daring, L. R. 2 Ad. 260 ; 37 L. J. Ad. 29 ; The Eugenie^ L. R 4 Ad. 123 ; 29 L. T. N. S. 314. * The Salaciaj Lush. 545. » The Union, Lush. 89 ; 1 Asp. M. C. N. S. 563. « The Hope, 28 L. T. N. S. 287 ; The Mary Ann, 9 Jur. 94 ' The Cargo ex Galam, Br. 32 & 33 Vict. c. 61, s. 4. ' ThiB does not apply to a claim by brokers for commiesion de- clared to be due to tnem in the charterparty : The Ntiova BafaeHna^ L. R. 3 Ad. 483 ; 41 L. J. Ad. 37. > 32 & 33 Vict c. 51. b. 2. * Everard v, Kendall, L. R. 6 C. P. 428 ; 39 L. J. C. P. 234. » Tke Dowse, L. R 3 Ad. 136; 39 L. J. Ad. 46; Allen v. Qarbatt, L. R. 6 C. L. 166 ; 60 L. J. C. L. 141. ' CaKO ex Argoe, L. R 3 Ad. 668 ; 41 L. J. Ad. 89 ; Simpson v. Bluea, L. R. 7 C. P. 290; 41 L. J. C. P. 121. ' Caigo ex Argosj mpra; Oonnestad v. Price, L. R. 10 £x. 66 ; 44 L. J. Ex. 44. » The Alexandria, L. R 3 Ad. 674; 41 L. J. Ad. 94; Flower «. Bradley, 44 L. J. Ex. 1 ; 31 L. T. N. S. 702 THE COUNTY COURTS. 107 charterparties, although the High Court may have no jurisdiction .in such cases ; ^ and this view of the County Courts Acts has recently been approved by the Court of Appeal.^ It has been held that the Common Law Courts were not bound by the decisions of the Privy Council.' Where no possible construction of the County Courts Admiralty Jurisdiction Acts will give jurisdiction to the County Courts, as in claims founded on bottomry, they cannot exercise jurisdiction.^ As to place, an Order in Council can give any County (8) Ab to Court Admiralty jurisdiction, and assign to it as its ^ ^ ^ ^^ district for Admiralty purposes any part or parts of any one or more district or districts of Coimty Courts. The district so constituted for that Court, with the parts of the sea (if any) adjacent to it, to a distance of three miles from the shore, is its district for Admiralty purposes ;^ and its jurisdiction is strictly confined within these limits,^ with the exception that certain orders, &c., may be made by the County Court judge without the district of his Court'^ Although the jurisdiction of the High Court in cases Concur- within the County Courts Admiralty Jurisdiction Acts and diction of the Merchant Shipping Acts is concurrent with that of the ^^^ County Courts, the jurisdiction of the latter is protected by the provisions as to costs, for although these have been impliedly repealed by recent cases, yet the judge will require good cause to be shown why costs should be given 1 Cargo ex Argos, L. B. 5 P. C. 134; 42 L. J. Ad. 1. * The Alinoy L. R. 5 P. D. 138; L. R. 5 Ex. D. 827; 49 L. J. Ad. 40. ' Flower v. Bradley, 44 L. J. Ex. 1 ; Merchant Shipping Co. v, Armitage, L. R 9 Q. B. 105 ; 43 L. J. Q. B. 28 ; Smith v. Brown, L. R. 6 Q. B. 729; 40 L. J. Q. B. 220 ; Leask v, Scott, L. R. 2 Q. B. D. 380. « The ElpiSy L. R. 4 Ad. 1 ; 42 L. J. AcL 43 ; Allen v. Qarbutt, L. R. 6 C. L 165; 50 L. J. C. L. 141. > 31 At 32 Vict c. 71, b. 2 ; Order in Council of Jan. 14, 1869. * The John Evam, 43 L. J. Ad. 9 ; 30 L. T. N. S. 308. ' 38 & 39 Vict. c. 50, s. 4. 108 THE COUNTY COURTS. if the case was one which could have been tried in an inferior Court. ^ Com- Proceedings in an Admiralty cause are to be com- mence- ° •' ment of menced : ^^^^®^' (1) In the Coimty Court within the district of which the vessel or property to which the cause relates is at the commencement of the proceedings ; (2) If the foregoing rule is not applicable, then in the County Court in the district of which the owner of the vessel or property to which the cause relates, or his agent in England, resides ; or, if such owner or agent does not reside within any such district, then in the County Court having Admiralty jurisdiction, the district whereof is nearest to the place where such owner or agent resides ; (3) If the last rule is not applicable, then in such County Court having Admiralty jurisdiction as General Orders direct ; (4) In any case in the County Court, or one of the County Courts having Admiralty jurisdiction, to which the parties agree by memorandum to give jurisdiction.* The cause may be heard either at the usual Courts held within the jurisdiction, or at special Courts to be held after notice of an Admiralty cause having arisen within the jurisdiction.' Transfer Under certain circumstances, Admiralty cases may be 2J[^^^^**®^' transferred from a County Court to the High Court, or from one County Court to another.* This transfer may (1) Of the be of the whole or of a part of the proceedings. On motion ^^^JJ]^ by any party to an Admiralty cause pending in a County 1 See Gamett v, Bradley, L. R. 3 App. Gas. 944 ; 48 L. J. Ex. D. 156, and the question discussed, ante, p. 15. » 31 & 32 Vict, c 71, s. 21. > S. 13 ; County Court Rules, 1875, Ord, xxxiii. rr. 1—3. ^ There is no power of ordering the trial in a County Court of an action begun in the High Court. 30 & 31 Vict c. 142, s. 7, applies only to Common Law actions of contract. THE CX)UNTT COURTS. 109 Court/ the High Court may, if it see fit, with previous notice to the other party, transfer the cause to the High Court, and may order security for costs, or impose such other terms sa to the Court may seem fit.* In this case the transfer is entirely at the discretion of the High Court. If during the progress of an Admiralty cause in a County Court it appears to the Court that the subject-matter exceeds the limit in respect of amount of the Admiralty jurisdiction of the Court, the Court is to transfer the cause to the High Court, unless the parties agree to confer jurisdiction upon the County Court, or unless the judge of the High Court in his discretion orders the cause to be prosecuted in the County Court in which it was commenced.^ In this case transfer is not discretionary, but compulsory, subject to the exceptions just mentioned. If during the progress of an Admiralty cause in a County Court it appears to the Court that it could be more conveniently prosecuted in some other County Court, or in the High Court, the Court may transfer it thereto.* By these provi- sions the High Court may transfer a cause to itself from a County Court, although the cause may relate to matters over which the High Court has no original jurisdiction, as a claim in respect of demurrage.^ But, if the claim is one over which the County Court has no jurisdiction (as a claim for bottomry), the High Court on transfer of the ' The transfer may be made upon intervention of any person claiming interest in the vessel, whether the intecest be cognizaole by the Court or not : County Court Rules, 1876, OrcL xxxiii r. 10. « 31 & 32 Vict c. 71, s. 6. > S. 7. In this section there is no express provision for the abandonment by the plaintiff of the excess of his claim, as in the County Courts Acts. It seems doubtful whether s. 34 is sufficient to render the provisions of those Acta available. * S. 8. In cases within the jurisdiction of the Cinque Ports, causes may be transferred to the Court of Admiralty there, instead of to the High Court • The Swan, L. K. 3 Ad. 314 ; 40 L. J. Ad. 8. See also ante, p. 106. 110 THE COUNTY COURTS. cause cannot entertain it.^ If any defence or counter- .claiin of the defendant involves matter beyond the juris- diction of the County Court, the High Court may, at its discretion, order that the whole proceeding be transferred to the High Court or any division thereof.* (2) Of part The above enactments relate to the whole proceedings. ceedingp. But by the Act of 1868, part of the proceedings may be transferred. Where under process on any decree or order of a County Court in an Admiralty cause, a vessel or property would or might be sold, then, if the owner of the vessel or property desires that the sale should be con- ducted in the High Court instead of in the County Court, he is entitled, on security for costs being first given, and subject and according to such other provisions as Qeneral Orders direct,* to obtain an order of the County Court for transfer of the proceedings for sale. If, however, the County Court judge thinks fit, the order may be for the transfer also of the subsequent proceedings in the cause the High Court has jurisdiction over, and all powers and authorities relating to such transferred proceedings.^ Institu- The practice as to institution, summons, appearance, moM,^™ arrest,*^ release, cross-action, notice of defence in collision, tender, payment out of Court, appraisement, records, and copies, is based upon that of the High Court, and depends upon the County Court Rules, 1875.® Cause, how If the cause is not transferred, the County Court judge must proceed to hear it as ordinary civil causes are heard.^ ^ The Elpis,L. B, 4 Ad. 1 ; 42 L. J. Ad. 43. > 36 & 37 Vict, c 66, 8. 90 ; County Court Rules, 1875, OnL xxxiii. rr. 19, 20. • County Court Rules, 1876, Ord. xxxiii. rr. 29 — 31* * 31 & 32 Vict. c. 71, s. 23. * This is expressly confined by 31 & 32 Vict, c 71, s. 22, within the limits there mentioned. If a ship is under the arrest of the High Court, and a cause is instituted in the County Court, she ou^ht to be arrested in the County Court action : The Tiirlicmif 32 L. T. N. S. 841. And see The Rio Lima, post, p. 113. • Old. xxxiii. ^ 31 & 32 Vict c. 71, 8. 10. THE COUNTY COURTS. Ill In any Admiralty cause of salvage, towage, or collision, Assessors the County Court judge may if he think fit, and on the request of either party must, he assisted hy two nautical assessors, in the same way as the judge of the High Court is assisted by nautical assessors,^ who are advisers only, for, if the judge differs from them in opiuion, he must give a decision in accordance with his view.^ In any Admiralty or maritime cause he may, if he think fit, or at the request of either party, be assisted by two mercantile assesors.^ Every inferior Court having Admiralty jurisdiction has, County as regards all causes of action within its jurisdiction, as ^^^ ^^ ample powers of relief as the High Court in a similar power of case ;* and the rules of law of the High Court receive gigj, *" effiect in all Courts in England, so far as the matters to Court which such rules relate are cognisable by such Courts.® Judgments are enforced in the same manner as in Enforce- ordinary civil causes in a* County Court, except where ™j"*^'^ / . . judgments. Otherwise provided.® For the execution of any judgment or order of a County Court in an Admiralty cause the Court has power to order, and the registrar on such order to seal and issue, and any officer of any County Court to execute, process according to General Orders,^ unless the owner have obtained an order for transfer.® In an action against an unknown defendant, the vessel is not to be taken in execution, but may be arrested and detailed, or ' 31&32 Vict. c. 71,8.10. • The Aid, L. R. 6 P. D. 84 ; 50 L. J. Ad. D. 40. • 32 & 33 Vict c. 51, s. 5 ; County Court Rules, 1875, Ord. xxxiii., rr. 42 — 46. The asBessors are paid according to the amount claimed, and these payments are, unless otherwise ordered, costs in the cause. < 36 & 37 Vict, c 66, s. 89. » S. 91. • 31 & 32 Vict c. 71, s. 12 ; County Court Rules, 1876, Old. xix., r. 1. The exertion is illustrated by the proceedings against an unknown defenaant ' County Court Rules, 1875, Ord. xxxiiL rr. 23—28, 37 " 31 & 32 Vict c. 71, 8. 23. See above for transfer. 112 THE COUNTY COURTS. kept under arrest, if already aiTested.^ If the defendant become subsequently known and do not appear after notice, the property to which the cause relates cannot be sold in execution until notice of the judgment has been served on the owner.^ Registra- Judgments and orders are registered with the Registrar judgments, of County Court Judgments in London, and must be duly transmitted to him by the registrar of the County Court.^ The Act of 1858 provides for the remuneration of the registmr/ and defines his powers.' Coats. The costs allowed and Court fees charged in Admiralty causes in the County Courts depend upon the Act of 1868* and the County Court Rules, 1875.^ In salvage cases, under the Merchant Shipping Acts, they depend upon a table framed in pursuance of the Merchant Shipping Act, 1862.® In default of any special direction by the judge, the costs abide the event.® In actions in rem, where the amount claimed does not exceed 20Z., the costs are allowed on the scale in actions above 20L, unless the judge is of opinion that proceedings in rem ought not to have been Taxation taken, and otherwise orders.'® The rules relating to taxa- of oostfl. tion of costs contained in the rules under the Act of 1868^^ 1 31 & 32 Vict. c. 71, 8. 22 ; County Court Rules, 1876, Ord. xxxiii r. 23. « R. 24. » 31 & 32 Vict c. 71, 8. 24 ; County Court Rules, 1875, Ord. xxxvii. r. 51. • 31 & 32 Vict c. 71, 8. 17. » Se. 19, 20. • 31 & 32 Vict c. 71, 8. 18. ^ County Court Rules, 1875 ; Scale of Costs ; Treasury Order of Oct 26, 1876, Sched. (B), Part IV. 8 25 & 26 Vict. c. 63, s. 69. • 9 & 10 Vict. c. 95, 8. 88, applied to the County Court in its Admiralty jurisdiction by 31 & 32 Vict c. 71, s. 34. As to exercise of this discretion, where the defence of compulsory pilotage is set up without notice to the plaintiff, see County Court fiules, 1875, OrcL xxxiii. r. 32 10 County Court Rules, 1875, Ord. xxxvi. r. 16. " Rr. 62—67. THE Cmr OF LONOOK OOUKT. 113 have been supefseded, and no others substituted by the County Court Rules, 1875.^ The forms to be used in Admiralty proceedings in the Fonns. County Courts depend upon the County Court Rules, 1875.2 Section XL Hie City of Lcmdon GourL Since the County Courts Act, 1867, the City of London Since 1867, Court has been practically a County Court The rules courts ^ and orders in force for the time being for regulating the practice of and costs in the County Courts, and forms and proceedings therein, are in force in the City of London Court, to the exclusion of any rules and orders in force in Xhat Court at the time of the passing of the County Courts Acts, 1867.* The City of London Court, therefore, pos- sesses the Admiralty jurisdiction of a County Court, and all the law relating to the Admiralty jurisdiction of the County Courts applies equally to this Court.* The jurisdiction of the City of London Qourt extends to Its local the districts of the County Court of Essex, holden at Roohford, Brentwood, and Romford ; the County Court of Kent, holden at Dartford, Qravesend, Greenwich, and Woolwich ; the South wark County Court of Surrey ; the Bow and Whitechapel County Courts of Middlesex ; and the City of London Court.* No judge, except the judge of the City of London Court, has Admiralty jurisdiction in the City of London.* ^ See the table in the County Court Hales, 1875, contrasting the old and new County Conrt Roles. As to unnecessary expenses, see The Rio Lima, L. R. 4 Ad. 157 ; 43 L. J. Ad. 4. ' See County Court Roles, 1875, Forms 243—261. ' 30 & 31 Vict c. 142, s. 35. * 'the Caigo ex Arffos, ante^ p. 106, was an apj^eal from the City of London Court. B Order in Council of Jan. 14, 1869. • 31 & 32 Vict. c. 71, 8. 2. 114 THE COURT OF PASSAGE AT LIVERPOOL. Regi»^ Judgments are registered in the same manner as judg- tion of i»ii^/^i •'o judgment, ments of the County Courts/ Limits of its juris- dictioiL Rules of practioe. Section III. The Court of Passage at Liverpool, This is an inferior Court,^ possessing a very ancient jurisdiction over causes of action arising within the Borough of Liverpool.* Jurisdiction in Admiralty was first conferred upon it by the County Courts Admiralty Jurisdiction Act, 1868, which gives it the jurisdiction, powers, and authorities of the County Court of Lancashire, holden at Liverpool, as defined by Order in Council* The area of its jurisdiction is not extended by the Act of 1868, nor is it in any way taken away or restricted.*^ The eflTect of the County Courts Admiralty Jurisdiction Act, 1868, and the Amendment Act, 1869, is to give jurisdiction to the Court in all cases where either the property to which the cause relates is within the jurisdiction, or where the owner of the property resides within the jurisdiction.® The law relating to the Admiralty jurisdiction of the County Courts applies, as in the case of the City of London Court, equally to this Court.^ Bules of practice were framed under the powers of the ' 31 & 32 Vict c. 71, 8. 24 ; County Court Rules, 1875, Ord. xxxvii. r. 6L « Laughton v. Taylor, 6 M. & W. 695 ; 10 L. J. N. S. Ex. 67. ' Russell's Practice of the Court of Passage, p. 14. « Older of Jan. 14, 1869. The local limits of the Admiralty juris- diction of the Liverpool County Court, aa defined hy that Order, are the districts of the County Court of Cheshire, holden at Birkenhead and Runcorn, and the Countr Court of Lancashire, holden at War- rington, St Helens, Liverpool^ and Ormskirk. • 31 & 32 Vict. c. 71, s. 25. • 31 & 32 Vict c. 71, 8. 21. ' The Dowse and The Alexandria, ante, p. 106, and other decisions, were Court of Passage cases. JUSTICES OF THE PEACE, 115 County Courts Admiralty Jurisdiction Act, 1868.' These rules must now be read subject to the rules framed after the Judicature Acts came into operation. By the last rules the practice of the Court of Passage is to be, mutatis mutamdia, the same as that of the High Court.^ Costs depend upon the scale framed in pursuance of the Costs. County Courts Admiralty Jurisdiction Act, 1868.* Section IV. Justices of the Peace. The Admiralty jurisdiction of justices of the peace is Their confined to cases of damage, salvage, and wages. tkST**^' The earliest jurisdiction was that given by the Harbours Under the Clauses Act, 1847, by which two justices have jurisdiction SjJ^^^^ to determine claims in respect of injury done by any Act, 1847. vessel or float of timber to a harbour, dock, pier, or quay, where the amount claimed for damage does not exceed £50, and to cause the offending vessel to be distrained * and kept until the amount of damages and costs awarded by them has been paid.^ Disputes as to amount of salvage arising in the United Salvage. Kingdom* (except within the Cinque Ports) are to be referred to the arbitration of any two justices or a stipen- Under the diary magistrate, if the sum claimed ^ does not exceed ^®"'"*"* 1 31 & 32 Vict. e. 71, ss. 25, 35, confirmed by 32 & 33 Vict. c. 6 ; General Orders of Feb. 8, 1869. See Appendix. * Roles of Dec. 22, 1876. * Qeneial Orders of Feb. 8, 1869, Scbed. I. The Bules of Dec. 22, 1876, do not contain any provision superseding or altering this scale. * It seems that a distress cannot be levied while the ship is under arrest of the High Court : The WesCmoreland, 4 Notes of Oases, 173 (a case of distress for wage«i, imder 17 & 18 Vict. c. 104, ss. 188, 189). * 10 & 11 Vict, c 27, 88. 74, 75 ; Wear Gommissioners v, Adam- eon, 1 Q. R D. 646 ; L. R. 2 App. Gas. 743 ; 47 L. J. Q. B. D. 193 (H. L.). * Tfui Actif, 3 Jut. N. S. 893. ' The words '' sum claimed '' mean the sum claimed by the salvor I 2 116 JUSTICES OF THS PEACK. ^^^PPfjf, £200. In case of wreck they must be resident at or near Act, 1854. •', the place where such wreck is found ; in case of services rendered to any ship or boat, or to the persons, cargo, or apparel belonging thereto, resident at or near the first port or place in the United Kingdom into which such ship or boat is brought after the occurrence of the accident by reason whereof the claim to salvage arises.^ If the sum exceeds £200, the justices can only have jurisdiction by consent. Their jurisdiction up to £200 is protected by the proviso by which, if a sum not greater than £200 is recovered in a Superior Court, the successful party is deprived of costs, unless the Court certifies that the case is a fit one to to be tried in the Superior Court.* So exclusive is their jurisdiction up to £200, that an action cannot be brought in a Common Law Court for distribution of salvage ; * and the High Court has jurisdic- tion to condemn in damages and costs plaintiffs who arrest and detain a vessel in respect of which a claim might have been proceeded with before justices.* In order that the Court may not do so, the arrest must have been made imder the bond fide belief that the High Court had jurisdiction. before any legal proceedings are taken : The WUliam and John, Br. & L. 49 ; 32 L. J. Ad. 102 ; The Andrew Wilson, Br. & L. 56 ; 32 L. J. Adm. 104. ^ Timber moored in a river and drifted to sea in consecjuence of accidental loosening of the fastenings is not wreck within the meaning of ss. 458, 460 ; Palmer v. Rouse, 3 H. & N. 505 ; 27 L. J. Ex. 437. > 17 & 18 Yict c. 104, s. 460. The intention of s. 460 is that ordinary cases of salvage under £200 should not be brought before the High Court: The Fmix, Swa. 13; The Leda,2Jui. N. S. 119. See The Actif, 3 Jur. N. S. 893. The provisions of 17 & 18 Vict c. 104, as to hfe salvage, are extended by 24 Yict c. 10, s. 9, and 25 Ss. 188, 191. • S. 251. " a 254 '^ Whether this applies to a claim for w^es earned on a foreign ship, qw(zr€: Bums v. Chapman, 5 C. B. N. S. 481 ; 28 L. J. C. P. 6. JUSTICES OF THE PEACE. 119 Court, or neither owner nor master is or resides^ within twenty miles of the place where the seaman or apprentice is put ashore.' Provision Ls made for suing upon allotment notes in the same summary manner. There is no restriction as to amount in this case.^ The amount advanced for the relief, &c., of a seaman left abroad may be recovered in the same manner as wages due to the seaman.^ Orders directing payment of wages may be enforced Enfonse- against the owner by distress of the ship, her tackle, fur- payment niture, and apparel.* ^ wageB. Proceedings under the Merchant Shipping Acts, 1854 Lmutfttion and 1862, must be taken ¥dthin six months after the cause ni^iirf of complaint arises, or no order for payment of money will be made ; or, if both or either of the parties are out of the United Kingdom, within six months after they both arrive or are at one time within it.« In the case of allotment notes concurrent jurisdiction is Concnr- expressly conferred by the words of the Merchant Shipping J^on. Act, 1854,^ upon all County Courts. Under the County Court Rules, 1875,® the County Court has as full powers of taking account of counter-claim and set-oflf as the justices under the Merchant Shipping Act. The costs of summary proceedings for salvage before Costi in 1 A place of occasional bnainess is not a residence within this section. The Blakeney, Swa. 428 ; 5 Jur. N. S. 418. ' S. 189. By this section the right of the High Court to enter- tain actions for wages is barred, except under the circumstances therein mentioned : The Harriet^ Lush. 285 ; 6 L. T. N. S. 210. * S. 169. The registered owner of a ship, if he has demised it and parted with all control over it. is not liable to pav arrears due under an allotment note made in lavour of a seaman s wife under this section : Meiklereid o. West, 1 Q. B. D. 428 ; 46 L. J. M. C. 91. * Ss. 213, 228. ' S. 523. A distress for seaman's wages cannot be levied while the vessel is under arrest of the High Court : The Westmoreland, 4 Notes of Cases, 173. * S. 525. ^ 17 & 18 Vict c. 104) 8. 472. As to advance notes, see farthei, 43 & 44 Vict c. 16. •Qrd.ix. 120 THE ADMIRALTY COURT OF THE CINQUE PORTS. ^Jy^ justices depend upon the scale framed by the Board of Trade in 1865, in pursuance of the Merchant Shipping Act, 1862.1 Section V. The Admiralty Court of the Cinqtie Porta. The Court of the Admiral of the Cinque Ports is one of gi*eat antiquity, dating from the middle ages, when within his jurisdiction the Admiral of these ports had as large authority as the Lord High Admiral himself. At the present time the original jurisdiction of this Court within its local limits^ seems to be as extensive as that of the High Court.' It is not mentioned in the recent enactments extending the jurisdiction of the High Court* The pro- ceedings in the Court are carried on by printed pleadings, though sometimes the case has been decided upon the facts disclosed in the affidavits of the parties.^ The Merchant Shipping* and County Courts Acts^ have always preserved the jurisdiction of this Court as a Court of concurrent jurisdiction with the High Court, on appeals within the Cinque Ports. The Judge of the Court is called the Judge Official and Commissary of the Court of Admiralty of the Cinque Ports, and is usually the Judge of the Admiralty Division, ^ 25 & 26 Vict. c. 63, 8. 49. For the jurisdiction of jnsticea over commorant vessels, see 17 & 18 Vict c. 104, a. 621; and a. 521 applies to the High Court as well as to justices. « For which see 1 & 2 Geo. IV. c. 76, s. 18. The Cinque Ports are Dover, Sandwich. Romney. Hastings, and Hythe ; the two ancient towns are Wincnelsea and Rye ; Seaford is a member of Hastings. See further Life of Sir L. Jenkins, vol. i., p. 85. s The Lord Warden v. The Kinc in his Office oi Admiralty, 2 Hagg. 438. Aa to its criminal jurisdiction, see 28 Hen. VIII. c 15. • 3 & 4 Vict c. 65 ; 24 Vict c 10. • The Clarim, 12 Moo. P. C. 340; Swa. 129. See Rules of this Court, of June 26, 1875. App. III. • 17 & 18 Vict c. 104, s. 460; see 18 & 19 Vict c. 48, s. 10. 7 31&32Victc. 71,8. 33. THE OOMHISSIOKCR8 WITHIN THE CINQUE PORTS. 121 who appoints a Surrogate to perfonn the necessary judicial duties. Section VL The Cimimiseioriers trithin the Cinque Ports. The iurisdiction of these commissioners dates from the Their year 1820, and was conferred upon them by statute.^ The Jj^^ ^j^" Lord Warden of the Cinque Ports can nominate three or pends on more commissioners in each of the Cinque Ports to adjust PortH Act, differences relative to salvage. Where vessels are forced ^^^^' or cut from their cables and anchors by any accident, and leave the same in any place within the jurisdiction of the Cinque Ports, &c., the commissioners are to determine any salvage claim within twenty-four hours after it is referred to them.' They have also power to decide upon all claims made by pilots and others for any kind of service rendered to a ship within the jurisdiction, and upon all claims for the saving, within the jurisdictioii, of any goods which are wrecked, stranded, or cast away from any ship ; and they may decide on such claims foi^ services rendered to shipping, whether the ships were in distress or not.' No commissioner can act except in the port in which he resides, or from which his usual place of resi- dence is not distant more than a mile.* The jurisdiction extends from Seaford to Faversham, Local taking in parts of the coast of Sussex, Kent, and Essex.* ^j^hL - ^ « -ww^ ^^ diction. 1 1 & S Geo. IV . c. 76. « 1 & 2 Geo. IV. a 76, s. 1. * S. 2. The ownen of a ahip to wMch salvage services had been rendered within the jnriadiction summoned a meeting of tihe com- miasionerB to adjudicate upon the amount of salvage. No notice of the intended meeting was given to any of the salvors, bat it was proved to be not nsnal to give such notice : The Elist^ Swa. 436. « 8. 3. By 9 Geo. IV. c. 37, s. 1, the power of appointing these oommissioneiB may also be ezerdsed by a deputy- warden, orby the Lieutenant of Dover Gutle. ■S. 1& 122 THE ROYAL COURTS OP JERSEY AND GUERNSEY, Jurisdic- tion in salvage always preserved. Concur- rent juris- diction of High Court and Admiralty Court of the .Cinque Ports. No limit of amount. The jurisdiction of the Cinque Forts in cases of salvage is especially preserved by later statutes/ though the pro- visions as to wreck and pilotage have been altered.^ The High Court, and the Court of Admiralty of the Cinque Ports,' have concurrent jurisdiction with the com- missioners.^ No limit of amount is named in any of the Acts relat- ing to the commissioners. Their authority. Section VII. The Royal Courts of Jersey and Guernsey. The authority of these Courts depends upon charters and letters patent, orders in Council, local ordinances, and Acts of the Imperial Parliament.* The Royal Court of Jersey seems to have jurisdiction by immemorial usage for six miles beyond low water mark. The jurisdiction of the Boyal Court of Jersey also extends over certain small islands, dependencies of Jersey (the whole being called " the bailiewick of Jersey "), and that of the Boyal Court ^ 17 & 18 Vict c. 104,8. 460; 17 & 18 Vict. c. 120, Sched. ; 18 & 19 Vict c. 48, 8. 10. > 17 & 18 Vict. c. 120, Sched; Maude and Pollock, Merch. Ship., p. 610 (Wreck) ; 16 & 17 Vict c. 129 ; 17 & 18 Vict c. 104, s. 370 (Pilotage). * The full title of the judge of this Court, sb stated in p. 120, is ^ The Judge Official and Commissaiy of the Court of Admiralty of the Cinque Ports,'' 1 & 2 Geo. IV. c. 76, s. 16. ^ The Ma/ria Luiaa, Swa. 67 ; 2 Jur. N. S. 264. This concurrent jurisdiction is not affected by the Merchant Shipping Act, 1862 (26 & 26 Vict c 63): TheJeune Paul, L. R 4 Ad. 336 ; 16 L. T. N. S. Ub; Bee The AntUope, L. R. 4 Ad. 33; 27 L. T. N. S. 663. ' See "Bemarques sur I'Approbation des Lois de Quemeze," by Le Marchant, vol. ii, pp. 227, 316 ; Le Quesne's " Constitutional History of Jersey ;" Report of the Boyal Commission on the Laws of Jersey (1861), Pritch. Adm. Dig. 307 ; Montesquieu, " Esprit des Lois,"^ ^ook zxvilL 8. 42 ; 120 the Bailiffs and Jurats of the Boyal Court of Guernsey, 6 Moo. P. C. 49 ; i2e the Jersey Jurats, L. B. 1 P. C. 94 ; 3 Moo. P. C. N. S. 466 ; also Le Birton v. Ennia, 4 Moo. P. C. 323. THE ADMIRALTY COURT OF THB ISLE OP MAN. 128 of Guernsey over Aldemey, Sark, and two other islands (" the bailiewick of Guernsey ").^ The practice in the Boyal Court of Jersey is said to Practice, differ widely from that of Guernsey.* The practice in both depends, in the first instance, upon the Great Customary of Normandy. It is difficult, if not impossible, to obtain a correct view of the law and procedure of these Courts, owing to the want of reports and law books of authority in the island' and of Admiralty cases on appeal to the Privy Council. It seems, however, that the Royal Courts sit as a "Cour en Amiraute," with general commercial rather than Admiralty jurisdiction,^ and as an appellate Court fix»m the " nombre infi^rieur."* These Courts must, upon application, aid and assist the Juriadic- High Court of Admiralty to enforce bonds given in the tj^° ^^^^ Vice- Admiralty Courts in case of salvage by a Queen's Shipping ship.® ^""^ ^®^*- Section VIII. The Admiralty Court of (he Ide of Man. This Court, which is presided over by the water bailiff of itg j^iris- the island, possesses a jurisdiction depending partly upon ^^^^ ^ Report of Royal GommiBBion, No. 1604^1616. ' "Tne Channel Islands," by Amsted and Latham, ch. xxiii. ' The only case which bears upon the Admiralty jnrisdiction of the Courts is The Nora Greinc^ Jtdy, 1862 (Royal Court of Jersey), Pritch. Adm. Dig. 308, from which it appears that when a ship is arrested in an Admiralty suit in the Royal Court the ship is detained until the suit is concluded, and that it is not the practice to release the ship on bail, and the Court will not do so without the consent of aU parties. See Report of fioyal Conmussion, p. iii., for the want of reports. ^ Amsted and Latham, ch. xxiii. ' Report of Royal Commission, p. liii. • 17 & 18 Vict c 104, ss. 486—494. For the existence of the Ad- miralty jurisdiction of these Courts, see further Report of Royal Commission, No. 1000, 1033, 1950 (for Jersey); Le Marchant's " Reinarques," &c., vol. ii., p. 277 ; ** Nous n'avons point de Court d'Amirant^, autre que la Cour Royale" (for Quemsey). 124 THE VICE-ADMI&ALT7 OOUBTB. By cuBtom. immemorial custom, partly upon statute. The jurisdiction is both in peraoTiam and m rem, and is almost identical with that of the High Court in England. It is most frequently employed to settle accounts between the owneiB. marters, and seamen engaged in the herring fishery, and sometimes to award salvage, and to punish offences committed upon the herring fleet. By statute. By the Merchant Shipping Act, 1854, the Court is to aid in enforcing bonds given in a Vice-Admiralty Court in the case of salvage services rendered by a Queen's ship.^ Practice The proceedings are usually of a summary nature. There are no written pleadings. The plaintiff serves the defendant with a short statement of his claim, with a writ from the water bailiff, under which the defendant is bound to attend. Proceedings may also be instituted by petition. The defence of the defendant is in either case usually stated orally in Court In certain cases trial by a jury of seafaring men is allowed ; but the jury trial, though still allowed, is practically extinct in this Court^ Section EX. 2%« Vice-Ad/miralty Courts, In what The Vice- Admiralty Courts have Admiralty jurisdiction Shl^fl^ in the British Colonies and possessioi^.^ In one instance, ^ 17 & 18 Yict. c. 104, 88. 484—93. The same power is ezerdsable by the Royal Courts of the Channel Islands. * Theee facts were Idndly furnished by Sir James Gell, Attoraey- Qeneial of the Isle of Man. * A list of these Courts is found in the Schedule to 26 & 27 Tict. c 24. The Straits Settlements have been added by 30 k 31 Vict c. 45, B. 17. For the mode of constituting them, see Pritch. Adm* Dig. 1063. For the Admiralty and Vice- Admiralty jurisdiction of the High Court of Bengal, see Broughton'b Civil Procedure Code (4th ed.), pp. 377, 897, 719, and tiie cases there cited, for Madzas, p. 358, for Bombay, p. 36a THE VICE- ADMIRALTY COURTS. 125 that of the Supreme and Provincial Conaular CourtR of the e^ab- ..... lished. Ottoman £inpire, Vice- Admiralty jurisdiction is exercised by Courts beyond the limits of British territory.^ They Not Couru are not Courts of Record.* Their powers before recent legislation depended on charters from the Crown. The '^^'^ practioe and jurisdiction differed considerably in the before different Courts, according to the powers given in the f®°?^x. charters,' The authority of the Vice-Admiralty Courts was looked upon jealously by the Common Law Courts of England, and was not recognised where a decree had been made illegal by the English law, as, where it confirmed a sale of ship or cargo by the captain where the case was not one of necessity, even though for the benefit of all concerned.* The powers of these Courts are now strictly Thefr defined by statute. powers. In case of salvage services being rendered by a Queen's Under the ship abroad, the property alleged to be salved is, if the slipping* fsalvor is justified in detaining it, to be taken into a port ^^t ^3^^- ^mrhere there is a consular officer or Vice- Admiralty Court. On the master's executing a bond in the form prescribed,^ and, if the owners be foreigners, procuring proper security as weU, the property is to be released, and the bond trans- mitted to the High Court for that Court to adjudicate upon. If the salvor and master agree that a Vice- Admiralty Court shall adjudicate, such Court has juris- diction. In the latter case, the Vice-Admiralty Court has all the powers of the High Court. Unless the salvor proceeds under this Act, he has no power to detain the property.^ If the salvor agrees to abandon his lien, upon 1 Under 6 & 7 Vict c. 94, s. 1, and the Order in Cotmcil of Jan. 9, 1863. • Smith V. Nichola, 7 Scott 147 ; 6 Bing. N. C. 208 ; 7 Dowl. 282, per Tindal, C. J. > See The Blizabttk, 1 Hagg. 226. * Beid V, Darby, 10 East, 143 ; Hunter v. Prinsep, 10 Ea«t, 378 ; Hunter v. Parker, 7 M. & W. 322 ; The Segredo, 1 Spks. 57. * 17 & 18 Vict. c. 104, Sched., Table W. • 17 & 18 Vict. c. 104, 88. 486-494. 126 THE VICE-ADMIRALTY COURTS. the master entering into a written agreement to abide the decision of the High Court or a Vice-Admiralty Court, and giving due security, the agreement may be adjudicated upon and enforced in the same manner as the bond above mentioned, and the agreement is to be transmitted to the High Court in the same maimer as a bond. This provision applies to salvage services rendered by any ship, whether a Queen's ship or not.^ Under the The matters in which jurisdiction has been conferred minUty upon these Courts by the Vice-Admiralty Courts Act, 1863, ^^o^o are claims: Act, 1863. (1) For seamen's wages ;* (2) For master's wages and disbursements ;' (3) In respect of pilotage ; (4) In respect of salvage of life or goods ; (5) In respect of towage ; (6) In respect of bottomry or respondentia bonds ; (7) In respect of mortgage where the ship has been sold by a decree of the Vice-Admiralty Court, and the proceeds are under its control ; (8) Between the owners of a ship registered in the possession in which the Court is established touching ownership, possession, employment, or earnings; (9) For necessaries supplied in the possession in which the Court is established, where no owner » S. 497. * Apart from any enabling statute, a Vice- Admiralty Court seems to have no more extended jurisdiction than the High Court over policies of assurance^ charter-parties, &c. Forsyth; Cases and Opinions, p. 94. (Opinion of Sir Christopher Robinson, Q. A.) " For wages, see also 17 & 18 Vict c 104, ss. 189-191. Under s. 191 the master has a lien for wages in the Vice- Admiralty Court, whatever may be the municipal law of the colony: The Rajah of Cochin^ Swa. 472. A suit for wages under £50 cannot be maintained in the Vice- Admiralty Court, by s. 189 of 17 & 18 Vict c. 104 ; but the Act of 1863 contains no such limitation. THE VICE-ADMIRALTY COURTS. 127 or part-owner is domiciled within the possession at the time of the necessaries being supplied ; (10) In respect of building, equipping, or repairing (with similar restrictions as to domicil).^ They have also jurisdiction in cases of breach of the Navy regulations, and of Admiralty droits.* Unless expressly confined by the Act, jurisdiction may be exercised where the cause or right of action has arisen beyond the limits of the jurisdiction.^ The High Court has concurrent jurisdiction with the Concur- rent inrifl* Vice-Admiralty Courts.* aictdon of The Supreme Consular Court of Constantinople and the 2^^ Provincial Consular Courts have the authority of Vice- The Con- Admiralty Courts.* The Supreme Court has jurisdiction J^ in the Ottoman dominions, a Provincial Court only within the Otto- its own district^ The jurisdiction of the Supreme Court °1*° ^™" is both in rem and in personamJ Statutory provision is made for the appointment of Offioenof judge, deputy-judge, registrar, and marshal of a Vice- Ad^iaity Admiralty Court.^ Court 1 26 & 27 Vict c. 24, 8. 10. • S. 11. ' S. 12. It haa also jurisdiction in revenue cases, &c. ; 26 & 27 Vict c. 24, a. 13 ; 36 & 37 Yict c. 85, s. 5 ; see The Herctdes, 2 Dods. 353 ; The EUzahethj 1 Hagg. 226. 4 30 & 31 Vict c. 45, 8. 16 ; TTu; Peerless, Lush. 30. » 6 & 7 Vict a 94, 8. 1. Order in Council of 12 Dec, 1873 ; State Papers, vol. 63, p. 59. For the jurisdiction before the Onder in Council and the Vice-Admiialtj Courts Act, 1863, see The Laconia, 2 Moo. P. C. N. S. 161 ; 33 L. J. Adm. 11 ; Br. & L. 117 ; Hamilton v, Aquilina, 2 L. T. N. S. 90 ; 7%€ PatrioUo v. The Rival, 2 L. T. N. 8. 301. The existence of a Vice- Admiralty Court within the territorial limits of an independent State is an allowed exception to General International Law. See the judgment of Lord Stowell in The Madonna del Burso, 4 C. Bob. 172 (1804). • Order of Dec. 12, 1873 ; State Papers, vol. 63, p. 59. ' The Laconia, supra. • 26 & 27 Vict c. 24, sa. 3—8 ; 30 & 31 Vict c. 45, ss. 4—14. See Rolet v. Reg., L. R I P. C. 198 ; 4 Moo. P. C. N. S. 41 ; for sufficiency of evidence of due appointment of a deputy -judge The Appellate Jurisdiction Act, 1876 (39 & 40 Vict, c 59), s. 23, 128 APPEALS TO THE PBIVY COUNCIL. Practice. Security for costs. Taxation of costs. The practice is at present governed by the rules framed in pursuance of the repealed statute 2 WUl. IV. c. 51J The proceedings as nearly as possible should follow the practice of the High Court in England ; thus, the form of preliminary acts should be the same.' Security for costs may be required to be given in a Vice- Admiralty Court, or in default the claim may be dis- missed.' If a party is dissatisfied with the taxation of costs in a Vice- Admiralty Court, it may be reviewed by the High Court.* 1. The Judicial Commit- tee. Section X. Appeals to the Privy Council, To this Court an appeal lies from the decisions of (a) The Royal Courts of Jersey and Quemsey ; * (6) The Isle of Man Court ; (c) The Vice- Admiralty Courts ; declares that the Judicature Acts, 1873 and 1875, made no difference in the power of the Admiralty to appoint judges and officers of Vioe- Admiralty Courts. ^ And an Order in Council of June 27, 1832 (Rules and Begalar tions for the Admiralty Courts abroad). 2 Will. IV. c 51, was repealed by 26 & 27 Vict 24, Sched. B., but the repeal does not affect the rules framed under the repealed stat. 26 & 27 Vict, c 24, s. 24 ; they remain until altered by the powers given in s. 14 of the latter Act. Powers are given by 26 & 27 Vict a 24, to frame new and alter existing roles. Proceedings against a vessel must be made under these rules, and not according to the rules of the Civil Law : Quimaraens v, Preston, 4 Moo. P. C. 167 ; 6 Jur. 879. Proctors may proceed in a Vice- Admiralty Court without exhibi- tion of a proxy till it is called for by the Court. As to proxies generally, Bee post, Pt. II., O. vii., p. 160. « The Ktyrnia, 34 L. T. N. S. 418 ; and see also The Inca^ Swa. 370. » George v, Reg., L. R. 1 P. C. 389 ; 4 Moo. P. C. N. S. 287. As to the transmission of the proceeds of sale from a Vice-Admiralty Court to the registry of the High Court for security, see The Lady Banks, 1 Ha^. Adm. 306. * 26 & 27 Vict c. 24, s. 22. * 3&4Will.'rV.c41,s. 1. APPEALS TO THE PRIVY COUNCIL. 129 (d) The Admiralty Court of the Cinque Porte ;^ (a) Appeals from the Royal Courts are either appeals From (a) proper or dol^ances, the latter being appeals or remon- ck^urtg. strances in which the conduct of the Court below is com- plained of.2 Where the ground of appeal is not the misconduct of the Court below, an appeal and not a dol&nce is the proper remedy.^ In all appeals from these islands, the respondents are to be summoned by the proper officer of the islands, to appear and answer the said appeals within forty days from the time of being so summoned.* Where the Royal Court has refused to allow an appeal, a notice should be given to that Court after application to the Privy Council for leave to appeal, that the Court may be heard at the hearing in objection to such appeal.^ No appeal from the Royal Court of Jersey is allowed, unless the value of the subject-matter® be £80 per annum.^ In Quemsey the appealable value is £200, and the appeal must be brought within six months from the date of the judgment complained of.* ^ For the origin of appeals to the King in Council, see Clark's Colonial Law, pp. 106 -121. • Report of Koyal Commission of 1861, p. liv. » Re Ames, 3 Moo. P. C. 409 ; see i2c Wliitfield, 2 Moo. P. C. 269 ; 6 Moo. P. C. 157. • Order in Council of July 16, 1835. Macpherson, Privy Council Practice, 224. ' Belaon v. Belson, 7 Moo. P. C. 30, dissenting from the note to Tupper's Caae, 2 Knafip, P. C. 201. • The values above given are those necessary whervi the subject- matter of the case is personal property. There is no special rule as to appealable value where the appeal is from the Royal Court as an Admiralty Court. 7 Order in Council of July 15, 1835. Ma'jph. P. C. Prac. App. 103. • Order in Council of May 13, 1835. Macph. P. C. Prac. App. 101. It is too late for a respondent at the hearing to take objection to the competency of the appeal on the ground that the prescribed appealable value was not involved, such objection nut having been taken in his case. The proper course is for the respondent to move to ^jamiafl the appeal on that ground. Aldridge v, Cato, L. R. 4 P. C. 313. 130 APPEALS TO THE PRIVY COUNCIL. (6) The (J) From the Court presided over by the water bailiff Man an^ appeal lies, in the first instance, either to the Court of Comt. Common Law of the Island, or to the Court called the Staff of Government. From the decision of the bailiff alone it lies to the latter, from the verdict of a jury to the Court of Common Law.^ But jury trial in the Admiralty Court is practically obsolete.* From the Staff of Government an appeal lies to the Judicial Committee,^ provided that it be brought within six months from the date of the judgment appealed from.* There is no fixed amount below which an appeal cannot be brought^ (c) The (c) Appeals from the Vice- Admiralty Courts* were Admiralty transferred from the High Court of Admiralty to the Courts. Judicial Committee in 1833/ and they are now regulated Vice- ^y the Vice-Admiralty Courts Act, 1863.® No appeal is r^^rtT^*^ to be allowed, save by permission of the judge, from Act, 1868. any decree or order not having the force of a definitive Within sentence or final order.® The appeal from any decree or iHrhat tune appeal ia Order must be brought within six months from the date of ^ ^ the decree ;^® the petition of appeal must be entered with ^ Before 1866 the appeal in such a case lay to the House of Keys. In that year the appellate jurisdiction of the House of Keys was abolishea. « See p. 123. ' It was held early in the last century to lie to the King in Council : Christian v. Corren, 1 P. Wms. 329. 4 Act of T^nwald pf Aug. 11, 1736. Macph. P. C. Prac. App. 106. • Macph. P. C. Prac, uhi supra. • For the general right of appeal from a Vice-Admiralty Court before the Act of 1833, see Forsyth, Cases and Opinions, p. 377. 7 3 & 4 Will. IV. c. 41, 8. 2. 8 26&27 Vict. c. 24. > 26 & 27 Vict c. 24, 8. 22. A party denying the right of his opponent to appeal should appear under protest, and not absolutely : Macph. P. C. Prac 204. ^^ The Judicial Committee may nevertheless at their discretion admit an appeal, notwithstanding that six months have elapsed : Casanova «. Reg., L. R. 1 P. C. 115 ; 3 Moo. P. C. N. S. 484 ; 36 L. J. P. C. 3. Beg. V. Diaz, 6 Moo. P. C. 102, and subject to a counter- petition to dismiss the appeal. The provisions as to the time for appealing apply to foreigners as well as British subjects : Lopez v. APPEALS TO THE PRIVY COUNCIL. 131 the registrar of ecclesiastical and maritime appeals within the proper time. The Appellate Court has power conferred upon it to Enforce- enforce its decrees and punish contempt.^ d^wew. If the judge of a Vice- Admiralty Court from which an appeal is brought has disregarded an inhibition forbidding him to proceed further in the case, a citation is issued by the Court against him, calling on him to answer articles touching his contempt, and followed by monition and attachment in case of disobedience.^ The judge must not disregard the inhibition, although he may consider that he is acting for the benefit of all parties * The rule as to appealable value apparently varies in the Appeal- diflFerent Courts. No appeal lies for costs only.* As to Appeal for appeal on the facts, the Judicial Committee have refused ©oste. to lay down any exclusive rule ; but they are most reluctant facta. to come to a conclusion different from that of the Court below merely upon a balance of testimony.* In appeals from Vice- Admiralty Courts, the Appellate Court endea- vours to find out the real merits of the question, without requiring that rules of practice should be strictly conformed to.® In appeals as to the amount of salvage, the Judicial Appeal Committee, like the High Court, is reluctant to review vage cases of salvage decided in Vice- Admiralty Courts, but*^*^- will, if the justice of the case requires it, increase the amount.^ BuTslem, 4 Moo. P. C. 300. See also Logan v. Biirslem, 4 Moo. P.O. 284; 7Jur. 1. 1 3 & 4 Will. IV. c. 41, 88. 21, 28 ; 6 & 7 Vict. c. 38. 88. 7—9 ; 7 & 8 Vict. c. 69, 8. 12 ; Lapraik t>. Burrows, 13 Moo. P. C. 132. ' Barton v. Beg., 2 Moo. P. C. 19 ; Martin v. Mackonochie, 7 Moo. P. a N. S. 264 ; Macph. P. C. Prac. 219. » Barton r. Field, 4 Moo. P. C. 273. * The Orient, L. R. 3 P. C. 696 ; 8 Moo. P. C. N. S. 74 (appeal from High Court) ; Wilson «. Reg., L. R 1 P. C. 406 ; 4 Moo. P. C. N. S. 307 (appeal from Vice- Admiralty Court). » The Alice, L. R 2 P. C. 245 (see Pt. II., 0. Iviii., note). « The Sally, 2 C. Rob. 229 ; The Le Louis, 2 Dods. 239. ' The Scindia, L. R 1 P. C. 241 ; 4 Moo. P. C. N. S. 84 ; 35 Xi* J. P. v/. 63. K 2 132 APPEALS TO THE PRIVY COUNCIL. Admission of further evidence. Jurisdic- tion of Appellate Court. Cause re- mitted or retained. Costs and damages. Rules of practice. Further evidence is admissible upon the appeal, but it can only be adduced after leave is given.^ The Judicial Committee, on an appeal from a Vice- Admiralty Court, has not more extended jurisdiction than the Court of first instance.* After a decision has been given upon the appeal, the cause may be either remitted or retained, or the cause may be remitted, whilst the taxation and enforcement of costs is retained.^ The successful party will, as a rule, be entitled to the costs of appeal^ But costs may be disallowed at the discretion of the CouH, if there is good reason for this course.^ The costs must be asked for at the hearing.® Taxation of costs is allowed, as in the other Superior Courts.^ Damages and costs below, as well as the costs of appeal, may be awarded to a successful appellant.^ The practice depends upon the rules framed in pur- suance of 6 & 7 Vict. c. 38,^ and affirmed by Order in 1 Guimaraens v. Preston, 4 Moo. P. C. 167 ; 6 Jnr. 879 ; Hocgaard V, Reg^ 11 Moo. P. 0. 155. In The ScindiOy L. R. 1 P. C. 241, leave was renised. * The Johfhy 2 Hagg. Adm. 305 (in the Court of Admiralty before the Act of 1833). * Macph. P. C. Prac. 206. The remitter may be allowed to proceed with the case, to transmit evidence, or to decide upon evidence, Macph. P. C. Prac 142, 144. In The Slave Grace, 2 Ha^. 134, Lord Stowell remitted a case affirmed on appeal back to a Vice- Admiralty Court that costs and damages might oe decreed. * Order in Council of June 13, 1853. Macph. P. C. Prac 255 ; App. 56. In an appeal against an apportionment of salvage between the seamen and the master, the owners, who were cited and appeared as respondents, were allowed costs up to the time when notice was given that no relief would be sought against them : The CaeUewood^ 4 Asp. M. C. 27a 8 Macph. P. C. Prac. 256. * Macph. P. C. Prac 161. 7 The costs are taxed by the registrar of the High Court (Admi- ralty Division) in his capacity of E^istrar of Ecclesiastical and Maritime cases, 6 & 7 Vict. c. 38, s. 12. 8 Rolet V. Reg» L. R. 1 P. C. 198 ; 4 Moo. P. C. N. S. 41 ; Casanovo V. Reg., L. R IF. C. 268 ; 4 Moo. P. C. N. S. 121 ; 36 L. J. P. C. 3. ' See the mode of procedure in a maritime appeal set out in Pritch. Adm. Dig. Appendix, ad fin. APPEAI^ TO THS HIOH COURT OP JUSTICE. 1S8 CounciL The forms to be used are contained in a Schedule to the Order.* The scale of fees depends upon an Order in Council Fees, framed in 1842.^ (d) Appeals to the Judicial Committee are prosecuted ( 1 & 2 Geo. IV. c. 76, s. 4. .*S. 4. » S. 5. « The Caledonia^ L. R 4 Ad. 11 ; 42 L. J. Adm. 13. As to tender on &PP^» Bee post. Part. IL, O. xxz. ^ The Caledonia, supra, » The David Luckie, 9 "Monthly Law Mag." (Notes of Cases), 209 ; PiitcL Adm. Dig. 618 ; The Elise, Swa. 436. APPEALS TO THE ADMIRALTY COURT OF THE CINQUE PORTS. 139 be subsequently abandoned, the salvors may be condemned in all costs and damages caused by the latter proceedings.^ Costs of appeal are in the discretion of the Appellate Costa of Court, as in the case of an appeal from justices.* appeal. Section XII. Appeals to the A dmiralty Court of the Cinque Poiis, To this Court an appeal lies from — The (a) County Courts within the Cinque Ports. q^^^ J'^ (6) The Commissioners within the Cinque Ports. ^^^ Cinque (a) In case of an appeal from a County Court within the ^^^ ia\ Cinque Ports, it lies either to the High Court or to this County Court* If it be brought in the latter, the instrument of appeal must be lodged in the registry of the Admiralty Court of the Cinque Ports.* A transfer of a County Court case within the Cinque Transfer. Ports may be made to this Court instead of to the High Court* (&) From a salvage award of the Commissioners within (h) Gom- the Cinque Ports an appeal Ues to either the High Court or this Court, at the option of the parties.® The practice on the appeal is the same, in whichever Court the appeal is brought^ 1 The Qhria de Maria, Swa. 106. * See T^ David IauHcU, The Thomas and WiUiam, The Henry of FhHadelphiay The Oscar, ante, pp. 137, 138, all which cases seem equally applicable to justices and Cinque Ports Commissioneis. * 31 & 32 Vict c 71,8.33. * Tb, » S.8. * 1 & 2 Geo. rV. c. 76, s. 4. ^ Ss. 4, 5. miSBionen. PART II. '■^ ■ t ■ THE PRACTICE OF THE COURT. Rules of Coubt. [Note. — Where no other proviaion it made by the Act or thae Rulet, tkepreeent procedure wnd practice remain inforoeJ}^ ORDER I. FOBM AND COMMENCEMENT OF ACTION. 1. All emits which have hitherto been commenced by a cause in rem or in personam in the High Court of Admiralty, shall be insti- tuted in the High Court of Justice by a proceeding to be called an action.1 In an action in rem the property in relation to which Actions m the claim has arisen, or the proceeds thereof when in Court ^^^^^^ are proceeded against, and are available to satisfy the claim if established. In an action in personam a certain per- ^ The followmg is the practioe as to clAims in respect of substitutes for seamen who have ▼olnnteered into the royal navy, under M. S. A. 1854, as. 214—220 : By A- C. R. 1859— R. 131. A solicitor desiring to obtain repayment under the provisions of the Merchant Shipping Act, 1854, of the excess of wages paid to a substitute hired in the place of a seaman volunteering into the royal navy, shaU file a claim, form of which may be obtained in the registry. "SL 132. If the claim be correct, he shall, on providing the proper stamp, receive a certificate for pajrment of the sum due. B. 133. If the claim be incorrect, he shall, on providing the proper stamp, receive the registrar's opinion in writing. IL 134. If the Kolicitor be dissatisfied with the opinion of the registrar, he may apply to the judge on motion to review the same, as pre- scribed by the Merchant Shipping Act, 1854. * The Admiralty Rules of 1859, which are still in force, are inserted among the following rules, and particularised by the letters "A. G. R., 1859 ;" they will also be found set out in App. III. Only those of the new rules which touch upon Admiralty actions are inserted in the following pages. 142 THE PRACTICE OF THE COURT. son, as in an ordinary action, is proceeded against, and there is no special object or fund to satisfy the claim. The action in rem is peculiar to the Admiralty Division of the High Court of Justice, for, though the jurisdiction formerly vested in the Court of Admiralty has been trans- ferred to the High Court of Justice (J. A. 1873, s. 16), yet all causes and matters over which the Court of Admiralty would formerly have had exclusive cognisance have been transferred to the Admiralty Division (J. A. 1873, s. 34, sub-s. 2 (e); Humphreys v. Edwards, 45 L. J. Ch. 112). The action when it is once commenced either in rem or in peraonam must continue in the form in which it is begun, and cannot be changed {The Hope, 1 W. Rob. 154). If there is a lis alibi pendens in respect of a cause of action begun in this country, the Court will order proceedings here to be stayed if the lis alibi pendens is continued {The CatteHna Chiazzare, L. R. 1 Ad. D. 368 ; 44 L. J. Ad. 105), and that even if the suit abroad is in persn. INDORSEMENT OF ADDRESS. 1. The solicitor of a plaintiff suing by a solicitor shall indorse upon every writ of summons and notice in lien of service of a writ of summons the address of the plaintiff, and also his own name or firm and place of business, and also, if his place of business shall be more than three miles from Temple Bar, another proper place, to be called his address for service, which shall not be more than three miles from Temple Bar, where writs, notices, petitions, orders, sum- monses, warrants, and other documents, proceedings, and written communications may be left for him. And, where any such solicitor is only agent of another solicitor, he shall add to his own name or firm and place of business the name or firm and place of business of the principal solicitor. 2. A plaintiff suing in person shall indorse upon every writ of summons and notice in lieu of service of a writ of summons his place of residence and occupation, and also, if his plaoe of residence shall be more than three miles from Temple Bar, another proper place, to be called his address for service, which shall not be more than three miles from Temple Bar, where writs, notices, petitions, orders, summonses, warrants, and other documents, proceedings, and written communications may be left with him. > See App. IV. INDORSEMENT OF ADDRESS. 147 [7^ above two Rules are to apply to all eases in uhich the writ of si^mmons is issued out of the London office f or out of a district registry where the defendarU has the option of erUering an appearance either in the district registry or the London office,} As to the formation of district registries, see J. A. 1873, ss. 60, 61 and 62 ; and J. A. 1875, s. 13. As to proceed- ings therein, see O. xxxv., post. These two rules only apply where the writ of summons is issued from the London office, 0. iv., r. ii., Feb. 1876. 3. In all cases where a writ of summons is issued out of a district The ad- registry the solicitor shall give on the writ the address of the plaintiff, ^"^ **" and his own name or firm and his place of business, which shaU, if his place of business be within the district of the registry, be an address for service ; and, if such place be not within the district, he shall add an address for service within the district ; and where the defendant does not reside within the district, he shall add a further address for service, which shall not be more than three miles from Temple Bar ; and where the solicitor issuing the writ is only agent of another solicitor, he shall add to his own name or firm and place of business the name or firm and place of business of the principal solicitor. Where the plaintiff sues in person, he shall give on the writ his place of residence and occupation, which shall, if his place of residence be within the district, be an address for service, and if such place be not within the district, he shall add an address for service within the district, and where the defendant does not reside within the district, he shall add a further address for service, which shall not be mote than three miles from Temple Bar. ORDER V. ISSUE OF WRITS OF BUBfMONS, 1. Place of Issue. 1. In any action other than a Probate action, the plaintiff, wherever Place of resident, may issue a writ of summons out of toe regif^try of any *^^^* district 2. In all cases where a defendant neither resides nor carries on l2 148 THE PRACTICE OF THE CO^RT. business vithin the disirict out of the registry whereof a writ of sum- mons is issued, there shall be a btatement on the face of the writ of summons that such defendant may caune an appearance to be entered at his option either at the district registry or the London office, or a statement to the like effect By R. 4, April, 1880, "Every writ of summons not issued out of a District Registry shall be issued out of the Central Office," not from the Registry. When de- 3. In all cases where a defendant resides or carries on business 'th^^ within the district, and a writ of summons is issued out of the district district registry, there shall be a statement on the face of the writ of sum- registiry. mous that the defendant do cause an appearance to be entered at the district registry, or to the like effect Choice of di^rimon. By whom prepared. 2. Option to choose Division in certain Ccues. 4. Subject to the power of transfer, every person by whom any cause or matter may be commenced in the High Court of Justice which would have been within the non-exclusive cognizance of the High Court of Admiralty if the said Act had not passed, shall assign such cause or matter to any one of the divisions of the said High Court, including the Probate, Divorce, and Admiralty Division, as he may think fit, by marking the document by which the same is com- menced with the name of the division, and giving notice thereof to the proper officer of the Court This rule allows actions over which the Court of Admiralty and the Common Law Courts had concurrent jurisdiction to be tried either in the Admiralty or any other division. See also J. A. 1875, s. 11, sub-s. 3. Thus, in an action for loss of life by collision at sea, unless the plaintiff wished that the action should be in rem, and that it should be tried by a judge alone, without a jury, he would set it down for some other than the Admiralty Division. The "proper officer of the Court" is the Admiralty Registrar or one of the clerks. 3. OeneraUy, 6. Writs of summons shall be prepared by the plaintiff or his solicitor, and shall be written or printed, or partly written and partly printed, on paper of the same description as hereby directed to be printed. ISSUE OF WRITS OF SUMMONS. 149 See O. Ivi., r. 2, as to paper, which is to be cream wove machine drawing foolscap folio paper, 19 lbs. per mill ream. 6. Every writ of sammons shall be sealed by the proper officer, SeAling. and shall thereupon be deemed to be issued. The oflScer is one of the clerks at the Central Office. 7. The plaintiff or his solicitor shall, on presenting any writ of Copy of summons for sealing, leave with the officer a copy, written or printed, ^^^ or partly written and partly printed, on paper of the description aforesaid, of such writ, and all the indorsements thereon, and such copy shall be signed by or for the solicitor leaving the same, or by the plaintiff himself if he sues in person. 8. The officer receiving such copy shall file the same, and an entry Filing. of the filing thereof shall be made in a book to be called the Cause Book, which is to be kept in the manner in which Cause Books have heretofore been kept by the Clerks of Records and Writs in the Court of Chancery, and the action shall be distinguished by the date of the year, a letter, and a number, in the manner in which causes are now distinguished in such last-mentioned Cause Books, and when such action Hhall be commenced in a district registry, it shall be further distinguished by the name of such registry. 9. Notice to the proper officer of the assignment of an action to Notice. any division of the Court under section 11 of the Supreme Court of Judicature Act, 1875, or under Rule 4 of this Order, shall be suffi- ciently given by leaving with him the copy of the writ of summon r. 11. "In Admiralty actions in rem a warrant for the arrest of pro- The war- pertj according to the Form A. in the Appendix to these Rules may ^^r' be issued at the instance either of the plaintiff or of the defendant at any time after the writ of summons has issued, but no warrant of arrest shall be issued until an affidavit by the party or his agent has been filed, and the following provisions complied with." (a) The affidavit shall state the name and description of the party Affidavit on whose behalf the action is instituted, the nature of the claim, the ^ lead the name and nature of the property to be arrested, and that the claim has not been satisfied. (6) In an action of wages the affidavit shall state the national character of the vessel proceeded against ; and, if against a foreign vessel, that notice of the institution of the action has been given to the Consul of the State to which the vessel belongs, if there be one resident in London [a copy of the notice shall be annexed to the affidavit]. 150 THE PRACTICE OP THE COURT. (c) In an action of bottomry, the bottomry bond, and if in a foieign language also a notarial translation thereof, shall be produced for the inspection and perusal of the registrar, and a copy of the bond, or of the translation thereof, certified to be correct, shall be annexed to the affidavit. (cT) In an action of distribution of salvage the affidavit ahall state the amount of salvage money awarded or agreed to be accepted, and the name, address, and description of the party holding the same. {e) The Court or Judge may in any case, if he think fit, allow the writ of summons to issue although the affidavit may not contain all the required particulars. In a wages cause he may also waive the service of the notice, and in a cause of bottomry the production of the bond. A praecipe, bearing a five shilling stamp (for form see App. lY.), must also be filed with this affidavit, according to the practice in the Admiralty Registry. The old practice, therefore, as regards actions in rem supplemented by the new writ of summons in rem, may be said still to prevail ; accordingly r. 8 of A. C. R. 1859 may still be con- sidered partially to be in force. " If the cause is in rem, the soUcitor may, on filing a precipe and an affidavit, take out a warrant for the arrest of the property proceeded against." As to service of the warrant, see post, p. 164. For Forms of these affidavits, see App. V. The ships of the Crown are not liable to arrest. When such a vessel is to be proceeded against, the registrar will inform the Lords of the Admiralty of the fact, and the Admiralty Proctor will then enter an appearance {The Athol, 1 W. Rob. 374) ;^ and passengers' wearing apparel on board a ship is free from arrest (The WiUem III,, L. R. 3 Ad. 487 ; 25 L. T. N. S. 356). As to the manner of service, see post, 0. ix., r. 9. Damages If an arrest is made in bad faith, or with gross negligence, or if it be continued longer than is necessary, the owner of the vessel is entitled to ask the Court for damages in respect ^ This is strictly the practice ; but now generally the Plaint^fM SolieUar gives notice to the Admiralty Proctor. for arrest ISSUE OF WRITS OF SUMMONS. 151 of such arrest {The Volcmt, Br. & L. 321 ; ITie Cheshire Witch, ib, 362 ; 11 L. T. N. S. 350 ; The EmngelieTnoa, Swa. 378 ; The Cathcart, L. R 1 Ad. 314 ; The Margaret Jane, L. R 2 Ad. 345 ; 38 L. J. Ad. 38) ; or if made prematurely, as before a bottomry bond is due {The Eudora^ L, R. 4 P. D. 208 ; 49 L. J. Ad. 32) : but see The Jane, 1 Dods. 467. In order to prevent the arrest of a ship, the plaintiff's solicitors often communicate with the defendants, and ask them to give an undertaking that proper bail shall be forthcoming ; if, however, a party desires to prevent the arrest of property in a more formal manner, he must proceed to act under A. C. R 1859, r. 55, et aeq., which are as follows : — 55. A party desiring to prevent the arrest of any property may Caveat cause a caveat against the issue of a warrant for the arrest thereof to agahut the beente^dinthe^gistry. If^^t 56. For this purpose he shall cause to be filed in the registry a prsecipe, signed by himself or his solicitor, undertaking to entej an appearance in an'y cause. that may be instituted against the said prop«;rty, and to give bail in such cause in a sum not exceeding an amount to be stated in the praecipe, or to pay such sum into the registry ; and a caveat against the issue of a warrant for the arrest of the property shall thereupon be entered in a book to be kept in the registry, called the " Caveat Warrant Book." 57. A solicitor, instituting a cause against any property in respect of which a caveat has been entered in the " Caveat Warrant Book," shall, before filing the praecipe to lead the institution of the cause, serve a copy thereof upon the party on whose behalf the caveat has been entered, or upon his solicitor. 5S. Within three days from the filing of the praecipe, the party Time, on whose behalf the caveat has been entered shall, if the sum in which the cause is instituted does not exceed the amount for which he has undertaken, give bail in such sum, or pay the same into the registry. 59. After the expiration of twelve days from the filing of the praecipe, if the party on whose behalf the caveat has been entered shall not have given bail in such sum, or paid the same into the registry, the plaintiffs solicitor may proceed with the cause by default, and on filing his proofs in the registry may have the cause placed on the list for hearing. 152 THB PRACTICE OF THE COUKT. 60. If, when the cause comes before the judge, he is satisfied that the claim is well founded, he may pronounce for the amount which appears to him to be due, and may enforce the payment thereof by monition and attachment against the party on whose behalf the caveat has been entered, and by the arrest of the property, if it then be or thereafter come within the jurisdiction of the Court 61. The preceding rules shall not prevent a solicitor from taking out a warrant for the arrest of any property, notwithstanding the entry of a caveat in the '* Caveat Warrant Book ;" but the party at whose instance any property in respect of which a caveat is entered shall be arrested, shall be liable to be condemned in costs and damages, unless he shall show, to the satisfaction of the judge, good and sufficient reason for having so done. These rules apply to counter-claims as well as to original actions. As to proceedings by default, 0. xiii. and O. xxix. ^"^- In addition to giving bail or paying money into Court when a caveat is entered against the issue of a warrant, it is also usual for a defendant who appears in an action at an early stage of the proceedings, if the res has been arrested, to give bail or pay money into Court, so as to obtain the release of the property, or give bail previously in order to prevent any arrest whatever, as has been already pointed out. Bail is the substitution of personal security for that of the res {The Duchease de Brahant, Swa. 264), and con- sequently when the res is released, it cannot usually be arrested again in the same action, or for the same cause of action {The Kalamazzoo, 15 Jur. 885). As a general rule bail is required to the amount of the claim, though, if that exceeds the lull value of the property, whether ship, cargo, or freight, it must be given to this amount, — that is, the value at the time of the arrest^ {The St Olaf, L. R 2 Ad. 360; 38 L. J. Ad. 41). If the amount of the costs, with or without damages, exceeds the sum for which bail has been given, and there has been no carelessness on the ^ VesselB are often released in actions of damage, when bail is given to the amount of the statutoiy liability upon an affidavit as to tonnage and non-privity of ownem. See atUCt pp. 64, 66. ISSUE OF WRITS OF SUMMONS. 153 part of the plaintifF, the Court will order the re-arrest of the ship for the satisfaction of such costs {TTie Freedom, L. R 3 Ad. 495 ; 41 L. J. Ad. 1). And if the bail equals the full value of the ship, then the Court will consider the owners personcJly liable for the costs incurred {The Temiscouta, 2 8pks. 208). It is doubtful, however, if the Court will order the re-arrest of a ship for a balance of damages over and above the sum in which bail has been given. It certainly will not when bail has been given to the full value of the ship, and the veiy principles of giving bail which allow personal security to take the place of the res to the amount of the claim, are against permitting such re-arrest (see Ttie Volant, 1 W. Rob. 385 ; The Temiacouta, 2 Spks. 208). If the amount of bail given before the property is valued proves to be too great when the worth of such property is ascertained, it will be reduced to a proper sum upon application to the Court (Tlie D^uchesse de Brabant, Swa 264; The Chieftain 32 L. J. Ad. 106 ; 8 L. T. N. S. 120 ; The Stafftrrdshire, L. R. 4 P. C. 194 ; 41 L J. Ad. 49 ; also as to bail, see A. C. Act, 1861, & 33). Bail can be required in respect of a counterclaim by a defendant as well as in an action by a plaintiff, and when the counterclaim is in personam, the proceedings by the plaintiff may be stayed till security is given by him (24 Vict. c. 10, s.S4s; The Charkieh, 42 L. J. Ad. 70 ; 29 L. T. N. S. 404). The value of the property proceeded against may be fixed by the parties themselves, or the plaintiff may re- quire it to be appraised by the marshal or his substitutes. In order to obtain an official appraisement application Official must be made to the judge in Court by motion, or in J^J^' chambers by summons, for an order for a commission of appraisement, which will be delivered to the solicitor at the registry (London or district) after a praecipe has been filed. 154 THE PRACTICE OF THE COURT. Tlie commission, which will be shortly after issued, directs the marshal to make in writing an inventory of the property, to choose proper persons to appraise the property according to its value, and then to have a certificate of such value reduced into writing signed by himself and the appraiser, and filed in the registry (London or district), together with the commission. An official appraisement is conclusive of the value of the property (The Cargo ex Venus, L. R 1 Ad. 50 ; 14 W. R. 460). Unlading If it is neccssary to unload the cargo, a commission of *^^^^ unlading should be applied for at the same time as the commission of appraisement, in order to save the ex- pense of twice paying the same fees. The appraisement and unlading must be performed by the marshal (A. C. R, 1859, r. 124j. " Every commission for the appraisement of property under the decree of the Court shall, unless the judge shall otherwise order, be executed by the marshal or his substitutes." When obtained, the commission, together with a prae- cipe for the execution of the commission, should be left at the marshal's office, and the acts mentioned in the com* mission wiU then be performed. Where persons insist on an official appraisement, though the owners of the property have given in its fair value, they will have to bear the costs of the appraisement (The Commodore, 1 Spks. VIbn.), If there is a substantial difference between the two valuations, the plaintiffs will be entitled to the costs of the valuation {Tlie Paxdj L. R 1 Ad. 57; 35 L. J. Ad. ] 6). Bail may be given either (1) in the registry or (II) before a standing or special commissioner. Bail giTen I. A. C. R, 1859, r. 39. " If bail is to be given in the ^^g^B^ registry, the solicitor shall, on filing in the marshal's office a praecipe, receive a notice of bail, a copy of which shall be served on the adverse solicitor." The praecipe is obtained at the registry. For form see App. IV. ISSUE OF WRITS OF SUMMONS. 155 A. C. R, 1859, r. 40. ** After the expiration of twenty- four hours from the time when the notice of bail shall have been so served, if the marshal has reported as to the sufficiency of the sureties, the solicitor shall be entitled to take up the marshal's report. He shall then file in the registry a praecipe with the notice of bail and the marshal's report, and sh^ be informed at what hour the sureties may attend." Two sureties are the ordinary number, but Sureties, they must not be partners (The Comer, Br. & Lush. 161 ; 33 L. J. Ad. 17). If there is an objection to the sureties it must be taken at once before the judge, but the marshal's report is seldom overruled, and when an objection is wrongly made it will be dismissed with costs. See p. 156. A. C. R, 1859, r. 41. " The bail bond shall be signed by the sureties, and shall be taken either before the registrar, or, by the regbtrar's directions, before one of the clerks in the registry." For form see App. IV. Where sureties are resident in the same town but cannot attend at the registry, a clerk will be sent to their residence, but a special fee of £1 is then charged. The above directions apply to district registries (J. A., 1873, s. 64 ; O. xxxv., r. la). The descrip- tion and address of the sureties should appear in the bond, though their absence will not actuaUy invalidate it {The Tamarac, Lush. 28). XL Bail before a commissioner may be taken before a Bail before special commissioner or before a standing commissioner. dOTor™"" Standing commissioners are permanently appointed in various parts. A. C. B., 1859, r. 42. ** Bail may be taken under a special commission, or before standing commis- sioners to be appointed by the judge ; but in every such case the sureties shall justify." To justify is to make an affidavit that the surety is worth more than the sum in which bail is to be given after the payment of all his debts. No report from the marshal is required. To obtain such commission a praecipe for a commission to take haul must be handed in to the registry ; the documents 156 THE PRACTICE OF THE COURT. will then be prepared and should then be forwarded to the commissioner. A. C. R., 1859, r. 43. " A bail bond taken before a commissioner appointed under a special or a standing commission shall not be filed in the registry until after the expiration of twenty- four hours from the time when a notice containing the names and addresses of the sureties and of the commissioner before whom the bail was taken shall have been served upon the adverse solicitor; and a copy of the notice verified by affidavit shall be filed with the bail bond." The defendant's solicitor must take care that after this notice the documents are filed. With the exception of obtaining a special commission the pro- ceedings before a standing commissioner are the same; but by A. C. R., 1859, r. 44, " A commissioner appointed under a special or standing commission shall not take bail on behalf of any person for whom he or any person in partnership with him is acting as proctor, attorney, solicitor, or agent;" and by r. 45, "The delays required by the preceding rules in regard to the taking of bail may be dis- pensed with by the consent of the solicitors in the cause." If the plaintiff is not satisfied with the bail he enters a caveat against the release (see p. 158). The defendant will then either give satisfax;tory bail or move for the release of the ship, and the objection to the bail being mentioned to the Court, it will order the sureties to be examined before the registrar on their affidavits of justification. If the objec- tion is not upheld by the registrar, the plaintiffs will be condemned in the costs occasioned by their objection {The Don Eicardo, U R. 5 P. D. 121 ; 49 L. J. Ad. D. 28). Payment By A. C. R., 1859, r. 48, " A solicitor may obtain the to^obuSn* release of any property by paying into the registry the release of gum in which the cause has been instituted." And by property. A- C. R., 1859, r. 49, " Cargo arrested for the freight only may be released by filing an affidavit as to the value of the freight, and by paying the amount of the freight into the registry." See p. 165. By A. C. R., 1859, r. 127, " All monies ISSUE OF WRITS OF SUMMONS. 157 shall be paid to the account of the registrar of tlie Admi- ralty Division, at the Bank of England, upon receivable orders to be obtained in the registry." A copy of the receipt for the sura paid in and a notice thereof should then be served on the adverse solicitor, and the original filed. By r. 128, "Orders for the payment of money out of Court shall be signed by the judge ;" but it will not generally be paid until the end of the action {The Annie ChUda, Lush. 509). The money will not bear interest without an application is made to the Court with that object {The North American, Lush. 79 ; 5 Jur. N. S. 659) ; and it is allowed only if the sum is large. The manner of releasing property under ordinary cir- The re. cumstances is regulated by A. C. R, 1859, r. 46, " Property ®*^ arrested by warrant shall only be released under the autho- rity of an instrument issued from the registry, to be called a release.'' The praecipe on which the release is obtained recites the fact that bail has been given or money paid in respect of the cause of action, and that there is no caveat against the release of the property outstanding. If parts of the property under arrest are released at different times, separate releases are necessary. Also, by A. C. R, 1859, r. 47, " A solicitor at whose instance any property has been arrested may, before an appearance has been entered, obtain the release thereof by filing a praecipe to withdraw the warrant." As regards r. 49, " Cargo arrested for the freight only Release of may be released by tiling an affidavit as to the value of the **"^' freight, and by paying the amount of the freight into the registry :" the value is that which is due under the charter- party or bill of lading, and the amount is less the expenses of paying in. By A. C. R., 1859, r. 52, "The release, when obtained, shall be left with a precipe in the marshal's office by the solicitor taking out the same, who shall also at the same time pay all costs, charges, and expenses attending the 158 THE PRACTICE OF THE COURT. Caveat againut release of property arrested. Pi-elimina- riee to bail in salvage aetiona. Agree- ment on or affidavit of valaOb care and custody of the property whilst under arrest, and the marshal shall thereupon release the property." To prevent the release of any property under arrest, proceedings must be taken under A. C. R, 1859, r. 53. " A solicitor in a cause shall file in the registiy a pne- cipe, and thereupon a caveat against the release of the property shall be entered in a book to be kept in the registry, called the * Caveat Release Book/ " and thereupon no proceedings can be taken without notice to the person who enters such caveat. And care should be taken not to foil under r. 54. " A party delaying the release of any property by the entry of a caveat shall be liable to be condemned in costs and damages unless he shall show to the satisfaction of the judge good and sufficient reason for having so done '* (on this rule see Hie Comer, Br. & L. 161 ; 12 L. T. N. S. 62 ; The Don Ricardo, L. R S. R D. 121 ; 49 L. J. Ad. 28). The damages will be assessed by the registrar. When such a caveat is entered the defendant may apply by motion or summons to overrule it, and ask for the release of the vessel, if there is good reason for such a course. If an action is transferred from a Countv Court to the High Court, and the res is under arrest in the Superior Court in respect of other actionsi A. G. R 1859, r. 63 («up'a), is applicable {I%e Rio Lima, 28 L. T. N. S. 774 ; 2 Mar. L. C. N. S. 34). To the general proceedings as to bail, actions for salvage are an exception. Here the plaintiff is entitled to have the value of the res ascertained before it passes out of the hands of the Court. This value can be obtained in two ways. By A. C. R, 1859, r. 50, " In a cause of salvage the value of the property under arrest shall be agreed, or an affidavit of value filed, before the property is released.'' (a) This agreement is usually binding on the parties unless exceptional circumstances can be shown by affidavit for altering the agreed amount (6) The affidavit should CONCURRENT WRITS. 159 contain the value of the property saved when the salvors' services were concluded. The amount, as shown in the affidavit, if it is given wrongly by a bond fide mistake, will be altered on application to the Court, even after a decree has been made {The James ArmstroTig, L. R. 4 Ad. 380 ; 33 L. T. N. S. 390). But generally, the value as shown is conclusive, e,g., when the ship was afterwards sold for a larger sum (The Betsy, 5 C. Rob. 296 ; The Hanna, 37 L. T. N. S. 364; 3 Asp. M. C. N. S. 503). If the salvors are not satisfied with this value they are en- titled to have the property officially appraised. As to official appraisements, see ante, p. 153. As to power of receivers of wreck, see arUe, p. 33. The three following rules are applicable to caveats generally. 174. A caveat, whether against the issue of a warrant, the release Duration of property, or the payment of money out of the registry, shall not °' <»veat remain in force for more than six months from the day of the date thereof. 175. A caveat may be withdrawn by the party on whose behalf With- it has been entered, or by his solicitor ; but the preecipe to lead the ^^^ ®' withdrawal thereof shall, save by permission of the registrar, be signed by the same person who signed the praecipe to lead the entry of the caveat 176. Application may be made to the judge on motion or by gammons to overrule any caveat. ORDER VI. CONCURRENT WRITS. 1. The plaintiff in any action may, at the time of or at any time Concur- dnring twelve months after the issuing of the original writ of sum- '^"^ ^^nta mens, issue one or more concurrent writ or writs, each concurrent writ to bear teste of the same day as the original writ, and to be marked with a seal bearing the word '^ concurrent,'* and the date of issning the concurrent writ : and such seal shall be impressed upon the writ by the proper officer; Provided always, that such concur- IGO THE PRACTICE OP THE COURT. rent writ or writs shall only be in force for the period during which the original writ in such action shall be in force. 2. A writ for service within the jurisdiction may be issued and marked as a concurrent writ with one for service, or whereof notice in lieu of service is to be given, out of the jurisdiction ; and a writ for service, or whereof notice in lieu of service is to be given, out of the jurisdiction, may be issued and marked as a 'concurrent writ with one for service within the jurisdiction. ORDER VII. DISCLOSURE BY SOLICITORS AND PLAINTIFFS. DiBclosnre 1. Every solicitor whose name shall be indorsed on any writ of of chent gammons shall, on demand in writing made by or on behalf of any citor. ' defendant who has been served therewith or has appeared thereto, declare forthwith whether such writ has been issued by him or with his authority or privity ; and if such solicitor shall declare that the writ was not issued by him or with his authority or privity, all pro- ceedings upon the same shall be stayed, and no further proceedings shall be taken thereupon without leave of the Court or a judge. It was the ancient practice of the Court that the proctor should exhibit his proxy, showing that he was authorized to appear for his client. But this practice has gradually fallen into disuse, and it was of late always assumed that a solicitor who appeared for a party was duly authorized to do so ; at the same time the Court, if it though right, could always require the solicitor to state by name the parties for whom he was authorized to appear {The Euodru, L. R. 4 P. C. 8 ; 41 L. J. Ad. 17). The above rule will now govern the practice as between plaintiffs' solicitor and the defendant ; but as regards the power of the Court to inquire, the old practice remains in force. Payment of solicitors' charges by a client, if he changes them during the action, will be enforced by the Court before allowing it to proceed (The Oneiza, L. R 4 Ad. 36 ; 1 Asp. M. C. N. S. 470. Ditdosnra 2. When a writ is sued out by partners in the name of their firm, BENBWAL OF WRIT. 161 the plaintiffs or thdr solidton shall, on demand in writing by or of memr on behalf of any defendant, declare forthwith the names and places ^^^ * of residence of all the persons constituting the firm. And, if the ^q^^^ plaintifb or their solicitor shall fail to comply with such demand, of writ all proceedings in the action may, npon an application for that pnr- poae, be stayed npon such terms as the Court or a judge may direct And, when the names of the partners are so declared, the action shall proceed in the same manner and the same consequences in 'all respects shall follow as if they had been named as the plaintiffs in the writ But all proceedings shall nevertheless continue in the name of the firm. ORDER VIII. RENEWAL OF WRIT. 1. No original writ of summons shall be in force for more than Renewal twelve months from the day of the date thereof, including the day ^^ ^'^^ of sach date ; but, if any defendant therein-named shall not have been served therewith, the plaintiff may before the expiration of the twelve months apply to a judge, or the district registrar, for leave to renew the writ ; and the judge or registrar, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent writ of summons be renewed for six months from the date of such renewal, and so from time to time during the currency of the renewed writ. And the writ shall in such case be renewed by being marked with a 8^ bearing the date of the day, month, and year of such renewal ; such seal to be provided and kept for that purpose at the proper office, and to be impressed npon the writ by the proper officer, upon delivery to him by the plaintiff or his solicitor of a memorandum in Form No. 5, in Appendix (A), Fart I.;^ and a writ of simunons so renewed shall remain in force and be available to prevent the opera- tion of any statute whereby the time for the commencement of the action may be limited, and for all other purposes, from the date of the isftuing of the original writ of summons. 2. The production of a writ of summons purporting to be marked with the seal of the Court showing the same to have been renewed in manner aforesaid, shall be sufficient evidence of its having been so renewed, and of the commencement of the action as of the first date of such renewed writ for all purposes. 1 See App IV. M 162 THE PRACTICE OF THE COURT. By r. 166, 1859, every instrument must have been served within six months from the day on which it bore date, a warrant of arrest in an action in rem must therefore still be served within six montha As to service, see post, O. ix., r. 9. When the original writ is lost it cannot be renewed (Davies v. Garland, 1 Q. B. D. 250). ORDER IX. Penonal Beirico. Husband and wif a Infant SERVICE OF WRIT OF SUMMONS. 1. Mode of Service, 1. No servioe of writ shall be required when the defendant, by his solicitor, agrees to accept service, and enters an appearance. 2. When servioe is required the writ shall, wherever it is practic- able, be served in the manner in which personal service is now made ; but, if it be made to appear to the Court or to a judge that the plaintiff is from any cause unable to effect prompt personal service, the Court or judge may make such order for substituted or other service, or for the substitution of notice for service, as may seem just. Rule 1 applies both to an action in rem and inperdonam, but r. 2 only to an action in personam. As to personal service, see Archbold's Practice, p. 231. As to service when defendant absconds, see Cook v. Dey, 2 Ch. D. 218; 45 L. J. Ch. 611 ; and Raphael v. Ongley, 34 L. T. N. S. 124. 2. On Particular DrfendanU. 3. When husband and wife are both defendants to the action, service on the husband shall be deemed good service on the wife, but the Court or a judge may order that the wife shall be served with or without service on the husband. 4. When an infant is a defendant to the action, service on his or her fSather or guardian, or if none, then upon the person with whom the infant resides or under whose care he or she is, shall, unless the Court or judge otherwise orders, be deemed good service on the SEEVICE OF WRIT OF SUMM0K3. 163 infant; provided that the Court or judge may order that service made or to be made on the infemt shall be deemed good service. 5. When a lunatic or person of unsound mind not so found by Lunatic, inquisition is a defendant to the action, service on the committee of the lunatic, or on the person with whom the person of unsound mind resides, or under whose care he or she is, shall, unless the Court or judge otherwise orders, be deemed good service on such defendant. These rules can only refer to actions in 'persorw/m,. 3. On PaHners and, otker Bodies. 6. Where partners are sued in the name of their firm, the writ Partnen. shall be served either upon any one or more of the partners or at the principal place within the jurisdiction of the business of the partner^ ship, upon any person having at the time of service the control or management of the partnership business there ; and, subject to the rules hereinafter contained, such service shall be deemed good service upon the firm. 6a. Where one person carrying on business in the name of a firm apparently consisting of more than one person, shall be sued in the firm name, the writ may be served at the principal place within the jurisdiction of the business so carried on, upon any person having at the time of service the control or management of the business there ; and, subject to any of the Rules of the Supreme Court, such service shall be deemed good service on the person so sued. 7. Whenever by any statute provision is made for service of any writ of summons, bill, petition, or other process upon any corpora- tion, or upon any hundred, or the inhabitants of any place, or any society or fellowship, or any body or number of persons, whether corporate or otherwise, every writ of summons may be served in the manner so provided. These rules again are only applicable to actions in personam. 9. '^ In Admiralty actions in rem the warrant of arrest shall be Service of served by the marshal or his substitutes, whether the property to be ^^n^^t arrested be situate within the port of London or elsewhere within the junsdictiou of the Court, and the solicitor issuing the warrant shall, within six days from the service thereof, file the same in the registry.* M 2 lONi THK PRACTICE OF THE OOUBT. As i^egards the arrest of property ebewhere ihaii in London, r. 3 of the Additional Rules of 1871 applies. R 3. If the property to be arrested be situate elsewhere than in the port of London, the warrant shall be executed either by the marshal or by the collector of the customs for the district within which the property happens to be. As to time of service, see ante, 0. viii., rr. 1 and 2. In the district registries and outports the collectors of customs act as the marshal's substitutes. After the arrest the marshal is liable for the safe custody of the matter arrested {The Hoop, 4 C. BoU 145); and any person who interferes with or carries away this property is liable to an attachment for contempt {The Petrd, 3 Hagg. 229). A warrant against a ship extends to sails and rigging detached from it {The Alexander, 1 Dods. 282), but not to passengers' wearing apparel and personal luggage (The WUUm IIL, L. R 3 Ad. 487; 25 L. T. N. & 386). And subsequent accretions in the value of a ship caused by repairs made by an owner are subject to the rights of a claimant {The Aline, 1 W. Rob. 111). If a second action is commenced against property under arrest, the service of the warrant is effected in the same manner as in the first action ; if the proceeds, however, are in Court, the warrant must then be served on the registrar. As will be observed on referring to 0. xiii., post, p. 171, service of a warrant is necessary in default actions. Manner 10. ** In Admiralty actions in rem^ service of a writ of Bummons of ierving. against ship, freight, or cargo on board, is to be effected hy nailing or affixing the original writ for a short time on the mainmast, or on the single mast of the vessel, and, on taking off the process, leaving a true copy of it nailed or fixed in its place." Any person may serve the writ of summons in rem. Service of a writ of summons in rem is equivalent to a notice to the owners of the subject-matter of the service and to all who may be interested in it {The Dowthorpe, 2 W. Bob. 80). And therefore, in order that the service may be SEBTICS OF WRIT OF SUBOCONS. 165 valid, the terms of this rule must be strictly followed (The Marie Constance, 37 L. T. N. S. 366; 3 Mar. L. C. N. S. 605). If a second action is begun against property already under arrest, the writ is served in the usual way on the res. Where a ship has been sold and the proceeds paid into Court, the registrar should be served with the writ (The Cassiopeia, L. R 4 P. D. 188 (C. A.); 48 L. J. Ad D. 39). 11. If the caigo has been landed or tsranshipped, service of the Service on writ of Bummoiia to arrest the cargo and freight shall be effected by ?^3^^^ placing the writ for a short time on the cargo, and, on taking off the ^^ process, by leaving a true copy upon it. There is a mistake in this rule : the writ of summons cannot arrest the cargo; the rule must therefore be read as if the words " to arrest ** were omitted, or instead of the above words " on " should be read. The freight itself cannot be arrested, but when it remains unpaid the cargo can be arrested as representing it (The ieo,31 L. J. Ad. 78; 6 L. T. N. S. 58), but wiU be released as soon as the amount of the freight has been paid into Court and an affidavit of value made (see p. 1 56) ; this same role applies if the shipowner is also owner of the cargo {The Victor, Lush. 72). Nor can the cargo be arrested in a damage suit, except as representing freight {The Flora, L. R 1 Ad. 45). The usual way, however, of proceeding against the freight is to move the judge to make an order conmianding those from whom the freight is due to pay the money into Court The freight dne on the whole of the cargo at the time a lien attaches is payable as well as on that part which is on board at the time of the arrest (The Boediff, L. R 2 Ad. 363; 38 L. J. Ad. 56). 12. If the cargo be in the custody of a person who will not permit Service on acceas to it, service of the writ may be made upon the custodian. custodian of cargo. This rule applies only to cargo which has been landed. 166 THE PRACTICE OF THE COURT. Indoree- ment ol tervioe. GeneraUy, 13. The penon serving a writ of summons shall, within three days at most after snch service, indorse on the writ the day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty, in case of non-appearance, to proceed by default; and every affidavit of service of such writ shall mention the day on which such indorsement was made. This nile applies also to an amended writ (2%e Cassiopeia, L. R. 4 P. D. 188; 48 L. J, Ad. D. 89). Substi- tuted ser- vioe. ORDER X. SUBSTITUTED SERVICE. Every application to the Court or a judge, under Order IX., Rule 2, for an order for substituted or other service, or for the substitution of notice for service, shall be supported by an affidavit setting forth the grounds upon which the amplication is made. This rule of course only applies to an action vn personam. By A. C. Act, 1861, s. 20, if reasonable efforts to effect service have been made, and the person to be served is aware of the writ, or wilfully evades service, then appli- cation is to be made to the judge. (See App. I., p. xxviii). Service out of juris- diction. ORDER XL SERVICE OUT OF THE JURISDICnON. 1. Service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or a judge when- ever the whole or any part of the subject-matter of the action is land or stocky or other property situate within the jurisdiction, or any act, deed, will, or thing affecting such land, stock, or property, and when- ever the contract which is sought to be enforced or rescinded, dis- solved, annulled, or otherwise affected in any such action, or for the breach wh^l'eof damages or other relief are or is demanded in such action, was made or entered into within the jurisdiction, and when- SKRVICE OUT OP THE JURISDICTION. 167 ever there has been a breach within the jurisdiction of any contract wherever made, and whenever any act or thing sought to be restrained or removed, or for which damages are sought to be recovered, was or is to be done or is situate within the jurisdiction. la. Whenever any action is brought in respect of any contract which is sought to be enforced or rescinded, dissolved, annulled, or other- wise affected in any such action, or for the breach whereof damages or other relief are or is demanded in such action, when such con- tract was made or entered into within the jurisdiction, or whenever there has been a breach within the jurisdiction of any contract wherever made, the judge, in exercising his discretion as to granting leave to serve such writ or notice on a defendant out of the jurisdic- tion, shall have regard to the amount or value of the property in dispute or sought to be recovered, and to the existence in the place of residence of the defendant, if resident in Scotland or Ireland, of a local Court of limited jurisdiction having jurisdiction in the matter in question, and to the comparative cost and convenience of proceed- ing in England or in the place of such defendant's residence ; and in all the above-mentioned cases no such leave is to be granted without an affidavit stating the particulars necessary for enabling the judge to exercise his discretion in manner aforesaid, and all such other par- ticulars (if any) as he may require to be shown. See aniey 0. ii., r. 5, note. Rale 1 applies also to third parties, to whom notice is given under O. xvL (The Swansea Shipping Go. v. Duncan, 1 Q. B. D. 644 ; 45 L. J. Q. B. 638). 3. Every application for an order for leave to serve such writ or Leave for notice on a defendant out of the jurisdiction shall be supported by ^T^ ^^^ evidence, by affidavit, or otherwise, showing in what place or j^risdic- country such defendant is or probably may be found, and whether tion. such defendant is a British subject or not, and the grounds upon which the application is made. 4. Any order giving leave to effect such service or give such notice shall limit a time after such service or notice within which such defendant is to enter an appearance, such time to depend on the place or country where or within which the writ ia to be served or the notice given. 5. Notice in lieu of service shall be given in the manner in which writs of summons are served. 168 THE PRACTICE OF THE COUBT. ORDER XII. APPEABAKCE. Appear- 1 and la. Except in the caaeB otherwise provided for by these ^'^'^ Roles a defendant shall enter his appearanoe in London at the Central Office. S. If any defendant to a writ issued in a district r^istry resides or carries on business within the district^ he shall appear in the district registry. In district 3. If any defendant neither resides nor carries on business in the '^^^^^^' district, he may appear either in the district r^^try or in London. 4 If a sole defendant appears, or all the defendants appear in the district registry, or if all the defendants who appear, appear in the district registry, and the others make default in appearance, then, subject to the power of removal hereinafter provided, the action shall proceed in the district regiatry. 5. If the defendant appears, or any of the defendants appear, in London, the action shall proceed in London ; provided that if the Court or a judge shall be satisfied that the defendant appearing in London is a merely formal defendant, or has no substantial oause to interfere in the conduct of the action, such Court or judge may order that the action may proceed in the district registry, notwithstanding such appearance in London. When a writ is issued from a district registry, and the defendant enters an appearance in London, the memoran- dum of appearance should recite that the action has been begun in the district registiy, its title in that registry, and that the defendant is out of the jurisdiction of that registry (TAe General Birch, 33 L. T. N. S. 792). Memoran- 6. A defendant shall enter his appearance to a writ of summons by dnm of delivering to the proper officer a memorandum in writing dated on imoeT^' the day of its delivery, and containing the name of the defendant's solicitor, or stating that the defendant defends in person. He shall at the same time deliver to the officer a duplicate of the memorandum, which the officer shall seal with the official seal show- ing the date on which it is sealed, and then return to the person entering the appearance, and the duplicate memorandum so sealed shall be a certificate that the appearance was entered on the day indicated by the seal Notice of the appearance must be sent on the same day to die plamtifrs solicitor. (R 6, April, 1880.) APPEAJULNCE. 169 An absolute appeamnce once entered cannot be recalled Appear- {The BlakeTiey, Swa. 428). But the defendant if he con- under pro. aiders that the Court has no jurisdiction over the subject- ^^^ matter of the action may appear under protest, as this practice is still in force, taJsiing advantage of A. C. R, 1859, r. 37 : "If the solicitor intends to object to the jurisdiction of the Court the appearance may be entered under pro- test" (The Vivar, L. R 2 Ad. 29 ; 35 L. T. N. S. 782). The memorandum of appearance should in that case bear the words " under protest " on it When the defendant has thus appeared under protest he may deliver a petition on protest, wherein the facts which show the want of jurisdiction should be stated (The Pieve Superiare, L. R 5 P. C. 482 ; 43 L. J. Ad. 20). With the exception of the commencement, the form of the petition should be that of an ordinary statement of claim. See Precedent, App. YI. To this the plaintiff replies, or he may move the Court to reject the petition. A more expeditious and ordinary course for a defendant under pro- test to pursue is to move the Court to dismiss the action or statement of claim. Should the protest be overruled the action will proceed in the ordinary course. 7. The solicitor of a defendant appearing by a solicitor shall state Address in such memorandum his place of business, and, if the appearance is '^' service entered in the London office, a place, to be called his address for service, which shall not be more than three miles from Temple Bar ; and, if the appearance is entered in a district registry, a place to be called his address for service, which shall be within tiie district 8. A defendant i^pearing in person shall state in such memoran- dum hifl address, and, if the appearance is entered in the London office, a place to be called his address for service, which shall not be more than three miles horn Temple Bar ; and, if the appearance is entered in a district registry, a place, to be called his address for service, which shall be within the district 9. If the memorandum does not contain such address, it shall not be received ; and, if any such address shall be illusory or fictitious, the a|>pearanoe may be set aside by the Court or a judge, on the applica- tion of the pl£ULnti£ 170 THE PRACTICE OP THE COURT. Entry of appear- ance. Appear- ance by partners. By two or more de- fendants. Non-entry of appear- ance Dy solicitor. Time of appear- ance. Intervon* tion of any person having an interest in the pro- perty arrested. 10. The memorandmn of appearance shall be in the Fonn No. 6, Appendix (A), Part I., with such variations as the circumstances of the case may require. It has been decided in the Admiralty registry that in an action in rem the names of the parties need not necessarily appear. See 0. viL For this form see App. IV. 11. Upon receipt of a memorandum of appearance, the officer shall forthwith enter the appearance in the cause book. 12. Where partners are sued in the name of their firm, they shall appear individually in their own names. But all subsequent proceedings shall, nevertheless, continue in the name of the firm. 12a. Where any person carrying on business in the name of a firm apparently consisting of more than one person, shall be sued in the name of the firm, he shall appear in his own name ; but all subsequent proceedings shall, nevertheless, continue in the name of the firm. 13. If two or more defendants in the same action shall appear by the same solicitor and at the same time, the names of the defendants so appearing shall be inserted in one memoraiidum. This last rule is of importance, since in actions in rem there may often be several defendants ; as to persons who may appear in an action in remj see r. 17, post. 14. A solicitor not entering an appearance in pursuance of his written undertaking so to do on behalf of any defendant shall be liable to an attachment 15. A defendant may appear at any time before judgment If he appear at any time after the time limited for appearance he shall, on the same day, give notice thereof to the plaintiff's solicitor, or to the plaintiff himself if he sues in person, and he shall not, unless the Court or a judge otherwise orders, be entitled to any further time for delivering his defence, or for any other purpose, than if he had appeared according to the writ 17. In an Admiralty action in rem^ any person not named in the writ may intervene and appear as heretofore, on filing an affidavit showing that he is interested in the res under arrest, or in the fond in the registry. The first part of Rule 17 distinctly enunciates what was long a practice in the Court of Admiralty. A sub- DEFAULT OF APPEARANCE. 171 stantial interest in the res or Aind is required, or in other words an interest which may be injuriously affected by the decree in the action {The Lowthorpe, 2 W. Rob. 73 (77)). This principle does not in reality conflict with the judg- ment in The KiUamey, Lush. 427 (435) ; 6 L. T. N. & 908, where it was assumed that the interests of third parties would from the nature of the defendant's case be properly cared for without the necessity of a separate appearance. So, a mortgagee may appear {The Jidirider, Spk. 75), and the trustee of a bankrupt {Hie Dowthorpe^ mpra), and underwriters, as long as they fall within the above principle {The Begina del Mare, Br. & Lush. 315). The owners of a ship which has been found to blame in a collision suit may appear in an action of salvage against the injured and salved ship, and, if they put in bail in lieu of the .latter, may conduct the defence, whilst the bail of the salved ship will be dischaiged {The Diana, 31 L. T. N. S. 203; 2 Mar. L. C. N. S. 366). Also the owners of cargo may appear in a wages suit against ship and freight, where the claimants desire to be preferred to bottomry bond- holders, since the result may cause the latter to have a claim against the cargo {The Union, Lush. 128 ; 30 L. J. Ad. 19). Adverse claimants would, it seems, also be allowed to appear {The India, 32 L. J. Ad. 35 ; The Volant, Br. & Lush. 321 ; The EaM&m Belle, 33 L. T. N. S. 214). ORDER XIIL DEFAULT OP APPEARANCE. 1. Where no appearance has been entered to a writ of summons Default of \ for a defendant who is an infant, or a person of unsound mind not so appear- ^ found by inquisitions, the plaintiff may apply to the Court or a judge J^y^^ ^ for an order that some proper person be assigned guardian of such penonami defendant, by whom he may appear and defend the action. But no flnch Older shall be made unless it appears on the hearing of such 172 THE PBACnCE OF THB COURT. I4>p1icatiaii that the writ of wimmopB was duly served, and that notice of audi implication was after the expiration of the time allowed for appeaianoey and at least six dear days hefore the day in such notice named for hearing application, served upon or left at the dweUiog-honse of the person with whom or nnder whose cue sach deiiendant was at the time of serving sadi writ of sammons, and also ^in the case of such defendant heing an in£uit not residing with or under the care of his fiither or gnardian) served upon or left at the dwelling-honae of the father or guardian, if any, of sach infant, unless the Court or judge at the time of hearing sudi application shall dis- pense with such last-mentioned service. This rule is applicable only to actions in persanarn. 2. Where any defendant fails to appear to a writ of summons, and the plainti£f is desirous of proceeding upon de&nlt of appearance under any of the following rules of this order, or under Order XV. , Rule 1, he shall, before taking such proceeding upon default, file an affidavit of service, or of notice in lieu of service^ as the caae may he. Default in 5. Where the defendant fiEuls to appear to the writ of summons, and ~^ tod ^^ ^^^ ^ ^^^ specially indorsed, but the plaintiff's claim is for a debt A^mt^i\. o' liquidated demand only, no statemei^t of daim need be delivered, but the plaintiff may file an affidavit of service or notice in lieu of service, as the case may be, and a statement of the particulars of his claim in respect of the causes of action stated in the indorsement upon the writ, and may, after the expiration of dght days, enter final judgment for the amount shown thereby and costs to be taxed, provided that the amount shall not be more than the sum indorsed upon the writ, besides costs. 5a. Where a defendant fiuls to appear to a vmt of summons issued out of a district registry, and the defendant had the option of entering an appearance either in the district registry or in the London office, judgment for want of appearance shall not be entered by the plaintiff until after such time as a letter posted in London on the previous evening in due time for delivery to him on the following morning, ought in due course of poet to have reached him. The above rules only apply to actions in peraoTiam. Proceed- (10.) In an Admiralty action in rem in which an appearance has ^^ ^ f ^^^ entered, the plaintiff may proceed as follows : — ''If within a fortnight after service of a writ of summons and DEPAUI/r OP APPEARANCE. 173 mraait no appearance ahall have been entered in the action, the appeftr- ance in eoHeitor for the plaintiff may file his statement of daim. And, if ^^^j^ within a fortnight from the filing of the statement of claim, no appear- rein, ance shall have been entered, the plaintiff's solicitor may, on bringing in his proofs, enter the action for trial. " If when the action comes before the judge he is satisfied that the plaintiffs claim is well founded, he may pronounce for the claim with or without a reference to the registrar or the registrar assisted by merchants, and may at the same time order the property to be appraised and sold with or without previous notice, and the proceeds to be paid into Ck)urt, or may make such order in the premises as to him shall seem just'' Rule 10 of the Judicature Rules having been repealed the old practice was revived and embodied in the preceding rules by an order issued from the registry in Feb. 1876. The practice is to enter the cause for hearing, when it will be set down in the list, and generally taken on the motion day of the week ; but, in some cases where there are excep- tional circumstances, the cause may come before the judge on motion for judgment under 0. xL, r. 1, and a decree will be made according to the daim on the writ without a statement of claim as required by the above rules (The JvZina, 35 L. T. N. S. 410) where there was a fund in Court, a previous action in regard to the same subject* matter bad been allowed to go by default, and the last daim was for wages. In the case of an action on a bottomry bond, the original bond must in all cases be brought into Court {The Rowena, 87 L. T. N. S. 366 ; 3 Asp. M. C. N. S. 406). When foreign sailors are plaintiffs and a sum is demanded by way of viaticum, a certificate of their consul must be brought to the notice of the judge, stating that the plaintiffs are returning home at their own cost, before a decree for this special sum can be obtained {The BaffaeUucda, 37 L. T. N. S. 365 ; 3 Asp. M. C. N. S. 505). The Court will generally also grant leave to bondholders to pay prior charges, as wages and other claims, and to tf» 174 THE PRACTICE OF THE COURT. have a lien in respect thereof, so as to save expense of actions, on an affidavit showing the charges (Tfu Fair Haven, L. R 1 AA 67). Applica- tion for aooount ORDEE XV. APPLICATION FOR ACCOUNT WHERE WRIT INDORSED UNDER ORDER UL, RULE 8. 1. In default of appearance to a sammons indorsed under Order IIL, Rule 8, and after appearanoe, unless the defendant, by affidavit or otherwise, satisfy the Court or a judge that there is some preliminaiy question to be tried, an order for the account claimed, with all direc- tions now usual in the Court of Chancery in similar cases, shall be forthwith made. 2. An application for such order as mentioned in the last preceding rule shall be made by summons, and be supported by an affidavit filed on behalf of the plaintiff, stating concisely the grounds of his daim to an account. The application may be made at any time after the time for entering an appearance has expired. ORDER XVI. PARTIES. Parties. 1* -^U persons may be joined as plaintiffis in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment. But the de- fendant, though unsuccessful, shall be entitled to his costs occasioned 'by so joining any person or persons who shall not be foimd entitled to relief, unless the Court in disposing of the costs of the action shall otherwise direct 2. Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been com- menced in the name of the right plaintiff or plaintiffs, the Court or a judge may, if satisfied that it has been so commenced through a 5oii^ fide mistime, and that it is necessary for the determination of the real PABTIEa 175 matter in dispute so to do, order any other person or persons to be fiabetitnted or added as plaintiff or plaintijSs upon such terms as may seem just Where the bailee of a vessel brings an action and is successful, the Court will take precautions that the sum awarded shall not be paid out without reasonable security that the owners do not also bring an action, and that both parties consent to the appropriation of the sum awarded {The Mvnna, L. R. 2 Ad. 97). In such a case it would be adviaable to join both baUees and owners under the first of the above rules. The assignors of a cause of action where there is no lien may sue for the assignees even though the assignors' claim does not accrue, and even if their general property has vested in a trustee in bankruptcy (The Wasp, L. R. 1 Ad. 367 ; 2 Mar. L. C. O. S. 552). Any number of persons having a common interest may be joined as plaintiffs : thus, several seamen may unite in a wages suit, and the owner of the ship and the owner of the cargo in an action for damages. A charterer, being generally, pro hoc vice, owner of the vessel, should be a party to an action for salvage instead of the actual owner {Ths Scovi, L. R. 3 Ad. 512 ; 41 L. J. Ad. 42), and the representative of a foreigner lost at sea in an action of damage {The Explorer, L. R 3 Ad. 289 ; 40 L. J. Ad. 41). 3. All persons may be joined as defendants against whom tbe right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment It will be obvious that this rule can apply only to an action m personam. 4. It shall not be necessary that every defendant to any action shall be interested as to all the relief thereby prayed for, or as to 176 THE PBACrnCE OF THE CJOURT. every cause of action included therein ; bat the Court or a judge may make such order as may appear just, to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in such action in which he may have no interest 5. The plaintiff may, at his option Join as parties to the same action all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes. 6. Where in any action, whether founded upon contract or other- wise, the plaintiff is in doubt as to the person from whom he is entitled to redress, he may, in such manner as hereinafter mentioned, or as may be prescribed by any special order, join two or more de- fendants, to the intent that in such action the question as to which, if any, of the defendants Lb liable, and to what extent, may be deter- mined as as between all parties to the action. TnuteeB 7. Trustees, executors, and administrators may sue and be sued on and execu' i)ehalf of or as representing the property or estate of which they are trustees or representatives, without joining any of the parties bene- ficially interested in the trust or estate, and shall be conddeied as representing such parties in the action; but the Court or a judge may, at any stage of the proceedings, order any of such parties to be made parties to the action, either in addition to or in lieu of the previously existing parties thereto. Married 8. Married women and infants may respectively sue as plaintiffs by w'^^te.^^ their next friends, in the manner practised in the Court of Chancery before the passing of this Act; and infants may in like manner defend any action by their guardians appointed for that purpose. Married women may also, by the leave of the Court or a judge, sue or defend without their husbands and without a next friend, on giving such security (if any) for costs as the Court or a judge may require. A giiaxdian of an infant is appointed by an instrument called a proxy, which appointment must be accepted by an instrument in writing, and both documents must then be filed in the registry {The Albert Crosby, Lush. 44). This was usually the practice when an infant was a plaintiff, but r. 8 appears to have altered the former practice. A child en ventre sa m^re can sue in actions of damage under 9 & 10 Vict c. 93. {The George & Richard, L. R 3 Ad. 466 ; 24 L. T. N. S. 717.) PARTIES. 177 9. Where there are nnmeTona parties haviDg the same interest in Repre- one action, one or more of such parties may sue or be sued, or may be se^tive authorized by the Court to defend in such action, on behalf or for the P^' ' benefit of all parties so interested. 10. Any two or more persons claiming or being liable as co-partners Partners, may sue or be sued in the name of their respective firms, if any ; and any party to an action may in such case apply by summons to a judge for a statement of the names of the persons who are co- partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the judge may direct. 10a. Any person carrying on business in the name of a firm apparently consisting of more than one person, may be sued in the name of such firm. 13. No action shall be defeated by reason of the misjoinder of parties. Misjoinder and the Court may in every action deal with the matter in controversy ^^ parties, so far as regards the rights and interest of the parties actually before it The Court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court or a judge to be just, order that the name or names of any party or parties, whether as plaintiffs or as defendants, impro- perly joined, be struck out, and that the name or names of any party or parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the action, be added. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any dif^bility, without his own consent thereto. AU parties whose names are so added as defendants shall be served with a summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedings as against them shall be deemed to have begun only on the service of such summons or notice. This rule is useful in actions of possession. Thus, should parties not be before the Court as defendants, the plaintiff whilst obtaining possession of a ship may not have any- one by whom payment of costs may be made. In such a case the Court will order persons who have not appeared and who are interested in the subject-matter of the action to be made parties. This practice was adopted in The Annandcde, L. R. 2 P. D., 179 ; 37 L. T. N. S. 364,^nd in N 178 THE PRACTICE OF THE COURT. The Native Pearl, 37 L. T. N. S. 542 ; 3 Asp. M. C. N. S. 575, wherein a managing owner was joined as a defendant. Striking 14. Any application tx> add or strike oat or snbstitate a plaintiff or 2]jV*° defendant may be made to the Conrt or a jndge at any time before trial, parti^ by motion or snmmons, or at the trial of the action in a sammaiy manner. 15. Where a defendant is added, nnless otherwise ordered by the Court or judge, the plaintiff shall file an amended copy of and sue out a writ of summons, and serve such new defendant with snch writ or notice in lieu of service thereof, in the same manner as original defendants are served. 16. If a statement of claim has been delivered previously to euch defendant being added, the same shall, unless otherwise ordered by the Court or judge, be amended in such manner as the making such new defendant a party shall render desirable, and a copy of such amended statement of claim shall be delivered to such new defendant at the time when he is served with the writ of summons or notice or afterwards, within four days after his appearance. Claim by 17. Where a defendant is or claims to be entitled to contribution defendant ^ indemnity or any other remedy or relief over against any other per- J^l^ son, or where from any other cause it appears to the Court or a judge parties. that a question in the action should be determined not only as between the plaintiff and defendant, but as between the plaintiff, defendant, and any other person, or between any or either of them, the Court or a judge may, on notice being given to such last-mentioned person, make such order as may be proper for having the question so deter- mined. See note to succeeding rule. 18. Where a defendant claims to be entitled to contribution, indem- nity, or other remedy or relief over against any person not a party to the action, he may, by leave of the Court or a judge, issue a notice to that effect, stamped with the seal with which writs of sunmions are sealed. A copy of such notice shall be filed with the proper officer and served on such person according to the rules relating to the service of writs of summons. The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the Court or a judge, be served within the time limited for delivering his statement of defence. Such notice may be in the form or to the effect of the Form No. 1, in Appendix (B) hereto, with such variations as dream- stances may require, and therewith shall be served a copy of the rtate- PARTIES. 179 ment of claim, or, if tbe^ be no statement of claim, then a copy of the writ of summons in the action. The working of the third party rules has not proved satisfactory, and the difficulties in putting them into prac- tice have been great. Their operation in questions of contract may be seen in the cases of Benecke v. Frost, 1 Q. B. D. 419 ; 45 L. J. Q. B. 693 ; Swansea Shipping Co. V, Duncan, 1 Q. B. D. 644; 45 L. J. Q. B. 638; Bower v. Hartley, 1 Q. B. D. 652; 46 L. J. Q. B. 126; The Associated Home Co. v, Whichcord, 47 L. J. Ch. 652. As regards questions arising out of torts, the judgment of the Court of Appeal in Horwell v, London General Omnibus Co., 2 Ex. D. 365; 46 L. J. Ex. D. 700, seems to have narn>wed them exceedingly, since there is scarcely a case in which a defendant can have a claim over against a third party, which if good, would not be a valid defence, and so render any question of contribution quite unnecessary. Thus if ship A. brings an action against ship B. for damage by collision, and B. says that the collision was caused by negligent navigation on the part of C. which caused B. to collide with A., this is a good defence to A/s action, and not a reason for bringing C. in as a third party. If B., however, were a ship in tow and C. the tug, B. would be responsible to A., and then might bring C. in as a third party. (See The Cartabv/m, L. R 5 P. D. 69; 41 L. T. N. S. 711.) Again, an action is brought by A. against B. for salvage, the necessity for such service having been causedby a collision between B. and C, B. might claim to be indemnified by C. for the amount of salvage. But it is now clearly established that the plaintiff must not be prejudiced by thus bringing in a third party, and if he is likely to be, the Court will refuse to allow this procedure to be used. As Roon as the third party is brought in, an application under r. 21 should be made to the Court to give directions as to N 2 180 THE PRACTICE OF THE COURT. the mode of trial, and the extent to which the parties are to be bound (The Cartsbum, av/pra)^ 19. When under Bale 17 of this Order it is made to appear to the Court or a judge at any time before or at the trial, that a question in the action should he determined, not only as between the plaintiff and defendant, but as between the pbuntiff and the defendant and any other person, or between any or either of them, the Court or a judge, before or at the time of making the order for having such question determined, shall direct such notice to be given by the phkintiff at such time and to such person and in such manner as may be thought proper, and if made at the trial the judge may postpone such trial as he may think fit. 20. If a person not a party to the action, who is served as men- tioned in Rule 18, desires to dispute the plaintiff's claim in the action as against the defendant on whose behalf the notice has been given, he must enter an appearance in the action within eight days from the service of the notice. In default of his so doing, he shall be deemed to admit the validity of the judgment obtained against such defendant, whether obtained by consent or otherwise. Provided always, that a person so served and failing to appear within the said period of eight days may apply to the Court or a judge for leave to appear, and such leave may be given upon such terms, if any, as the Court or a judge shall think fit. 21. If a person not a party to the action served under these rules appears pursuant to the notice, the party giving the notice may apply to the Court or a judge for directions as to the mode of having the question in the action determined ; and the Court or judge, upon the hearing of such application, may, if it shall appear desirable so to do, give the person so served liberty to defend the action upon such terms as shall seem just, and may direct such pjeadings to be delivered, or such amendments in any pleadings to be made, and generally may direct such proceedings to be taken, and give such directions, as to the Court or a judge shall appear proper for having the question most conveniently determined, and as to the mode and extent in or to which the person so served shall be bound or made liable by the decision of the question. JOINDER OF CAUSES OF ACTION. 181 ORDER XVII. JOINDER OF CAUSES OF ACTION. 1. Subject to the following roles, the plaintiff may unite in the Joinder of same action and in the same statement of daim several causes of <^^^f^ ^' action, action ; but, if it appear to the Court or a judge that any such causes of action cannot be conveniently tried or disposed of together, the Court or judge may order separate trials of any of such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof. 3. Claims by a trustee in bankruptcy as such shall not, unless by leave of the Court or a judge, be joined with any claim by him in any other capacity. 4b Claims by or against husband and wife may be joined with claima by or against either of them separately. 5. Claims by or against an executor or administrator as such may be joined with claims by or against him personally, provided the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator. 6. Claims by plaintiffis jointly may be joined with claims by them or any of them separately against the same defendant. 7. The last three preceding rules shaU be subject to Rule 1 of this Order, and to the rules hereinafter contained. 8. Any defendant alleging that the plaintiff has united in the same Confining action several causes of action which cannot be conveniently disposed *^^^^ of in one action, may at any time apply to the Court or a judge for an order confining the action to such of the causes of action as may be conveniently disposed of in one proceeding. 9. If, on the hearing of such application as in the last preceding rule mentioned, it shall appear to the Court or a judge that the causes of action are such as cannot all be conveniently disposed of in one action, the Court or a judge may order any of such causes of action to be excluded, and may direct the statement of claim, or, if no statement of daim has been delivered, the copy of the writ of summons and the indorsement of claim on the writ of summons to be amended accordingly, and may make such order as to costs as may be just 182 THE PRACTICE OF THE COURT. ORDER XVIII. ACTIONS BY AND AGAINST LUNATICS AND PERSONS OF UNSOUND MIND. Action by In all cases in which lunaticA and persons of unsound mind not so hmaticB, found by iniquisition might respectively before the passing of the Act have sued as plaintiffs or would have been liable to be sued as defen- dants in any action or suit, they may respectively sue as plaintiffs in any action by their committee or next friend in manner practised in the Court of Chancery before the passing of the said Act, and may in like manner defend any action by their committees or guardians appointed for that purpose. &c. ORDER XIX PLEADING GENERALLY. facts only. Pleadings : I. The following rules of plejding shall be substituted for those ^hey heretofore used in the High Court of Chancery and in the Courts of Sief and Common Law, Admiralty, and Probate, contain 3. Unless the defendant in an action at the time of hia appearance ?*^^i_ 8^1 ***^ ^^ ^® ^^^^ ^^^ require the delivery of a statement of complaint, the plaintiff shall within such time and in such manner as hereinafter prescribed, deliver to the denfendant after his appearance a statement of his complaint and of the relief or remedy to which he claims to be entitled. The defendant shall within such time and in such manner as hereinafter prescribed deliver to the plaintiff a state- ment of his defence, set>off, or counter-claim (if any), and the plaintiff shall in like manner deliver a statement of his reply (if any) to such defence, set-off, or counterclaim. /SiccA statements shall be as brief as the wUwre of the ease will admit, and the Court in adjusting the costs of the action shall inquire at the instance of any party into any unnecessary prolixity, and order the costs occasioned by such pro- lixity to be borne by the party chargeable with the same. These and the following rules apply to petitions on pro- test and against the report of the registrar as well as to ordinary pleadiugs (J. A., 1873, s. 100, and 0. i., r. 3). PLEADING GENERALLY. 1H3 The briefiiess must necessarily depend on the circum- stances of each particular case, but it was pointed out under the old Admiralty procedure, upon which these rules are modelled, that not every material fact need be pleaded, but such only as if proved or admitted would establish the plaintiflTs (or defendant's) case {The West of England, 1 K R Ad. 307). On the other hand, every material fact in which the parties intend to rely must, — it will be seen under r. 4, — ^be pleaded. And it was held (under the old practice) that a fact was not to be implied from a general allegation, but to be distinctly stated. This decision is still applicable (The Marpeda, L. E. 4 P. C. 212 ; 26 L. T. N. S. 333). 3. A defendant in an action may set off, or set up by way of Counter- counter-claim against the claims of the plaintiff any right or claim, claims and whether such set-off or counter-claim sov/nd in damages or not, and such set-off or counter-claim shall have the same effect as a state- ment of claim in a cross action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross-claim. But the Court or a judge may, on the application of the plaintiff before trial, if in the opinion of the Court or judge such set- off or counter-claim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof^ By this rule cross-actions, such as those for damage by collision are no longer necessary, for any cross-claim or set- off which a defendant may have can be pleaded by way of counter-claim so long as it can be conveniently disposed of in the pending action. Thus, the limitation of liability For llmlta- under M. S. Act, 1862, s. 54, can be claimed in this manner u^jJiHty. {e.g. The Clutha, 45 L. J. Ad. 108 ; 35 L. T. N. S. 36). Though it has been held that it may be properly pleaded ad a partial ground of defence (Wahlberg v. Young, 46 I^ J. C. P. 783) ; see further on limitation of liability, cmie, pp. 54, 55. It has been laid down as a principle that " the set-off claimed must be connected with the original cause of action " (Padwick v. Scott, 2 Ch. D. 736 ; 45 L. J. 184 THE PRACTICE OF THE COURT. Evidence not to be pleaded. Ch.350). Ar to striking out counter-claims, see po8t, O. xxii., r. 9 ; but, even with this limitation, the Admiralty juris- diction in this matter is much enlarged, since it was formerly more or less confined to actions for wages (see The Don FraTwisco, Lush. 468 ; 5 L. T. N. S. 460). 4. Every pleading shall contain as condsely as may be a statement of the material facts on which the party pleading relies, but not the evidence by which they are to be proved, such statement being divided into paragraphs numbered consecutively, and each paragraph containing as nearly as may be a separate allegation. Dates, sums, and numbers shall be expressed in figures and not in words. Signa- ture of couusel shall not be necessary. Forms similar to those in Appendix (C) hereto may be used. As to some of the rules of pleading, see ante, r. 2. 5. Every pleading which shall contain less than ten folios of 72 words each (every figure being counted as one word) may be either printed or written, or partly printed and partly written, and every other pleading, not being a petition or summons, shall be printed. Delivery of 6. Every pleading or other document required to be delivered to a pleadings, party, or between parties, shall be delivered in the manner now in use to the solicitor of every party who appears by a solicitor, or to the party if he does not appear by a solicitor ; but, if no appearance has been entered for any party, then such pleading or document shall be delivered by being filed with the proper officer. • This rule supersedes the old practice of filing pleadings in the registry, except in cases of objection to the re- gistrar's report. Date of 7. Every pleading in an action shall be delivered between parties, porting a right of set- off or counter-claim, he shall in his statement of defence state specifically that he does so by way of set-off or counter-claim. 11. If either party wishes to deny the right of any other party to claim as executor or as trustee, whether in bankruptcy or otherwise^ or in any representative or other alleged capacity, or the alleged con- stitution of any partnership firm, he shall deny the same specifically. 17. Eveiy allegation of fact in any pleading in an action, not Admission being a petition or summons, if not denied specifically or by ?* plead- neceasary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of unsound mind not so found by inquisition.^ It was decided under the old practice that an admission of law could not be made in pleadings, and r. 17 by implication supports this decision {The Peerless, Lush. 103 ; 13 Moo. P. C. 484). 18. Each party in any pleading, not being a petition or summons. Allegation must allege all such facts not appearing in the previous pleadings as ^^ material he means to rely on, and must raise all such grounds of defence or ^^'^ reply, as the case may be, as if not ndsed on the pleadings would be likely to take the opposite party by surprise, or would raise new issues of fact not arising out of the pleadings, as, for instance, fraud, or that any claim has been barred by the Statute of limitations, or has been released. Before these rules the defence of non-communication with owners to an action on a bottomry bond was held to be one which should be specially pleaded, and it clearly should be still set out in the defence (see The Oliider, Lush. 484. ^ The five preceding rales are omitted, as inapplicable to Admiralty actions. 186 THE PRACTICE OF THE COURT. 19. No pleading, not being a petition or Bummons, shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconBiBtent with the pteyioos pleadings of the party pleading the aame. Rule 19 would not, according to the old practice, apply to petitions on protest or against the registrar's report, and it would not be considered now as applicable to these cases. Denial of 20. It ahall not be sufficient for a defendant in his defence to facts. deny generally the facts alleged by the statement of claim, or for a plainti£f in his reply to deny generally the &cts alleged in a defence by way of counter-claim, but each party must deal specifically with each allegation of fiEU^t of which he does not admit the truth. 21. Subject to the last preceding rule, the plaintiff by lus reply may join issue upon the defence, and each party in his pleading, if any, subsequent to reply, may join issue upon the preyious pleading. Such joinder of issue shall operate as a denial of every material allegation of fact in the pleading upon which iasae is joined, but it may except any facU which the party may be willing to admit, and shall then operate as a denial of the facts not so admitted. 22. When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And so, when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along with those circumstances, but a fair and substantial answer must be given. Allegation 23. When a contract is alleged in any pleading, a bare denial of of con- the contract by the opposite party shall be construed only as a ^^^^ denial of the making of the contract in fact, and not of its legality or its sufficiency in law, whether with reference to the Statute of Frauds or otherwise. Docu- 24. Wherever the contents of any document are material, it shall ments. \^ sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof^ unless the precise words of the document or any part thereof are materiaL Halioe, &c 25. Wherever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any person, it shall be PLEADING GENERALLY. 187 sufficient to all^^ the same as a fact, without setting out the drcom- Btanoee from which the same is to be inferred. 26. Wherever it is material to all^;e notice to any person of any fact, matter, or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice be material. 87. Wherever any contract or any relation between any persons Implied does not arise firom an express agreement, but is to be implied from cm^tncts. a series of letters or conversations, or otherwise from a number <^ circumstances, it shall be sufficient to allege such contract or relation as a facty and to refer generally to such letters, conversations, or ciicumstances without setting them out in detail. And, if in such case the person so pleading desires to rely in the alternative upoii more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative. 28. Neither party need in any pleading allege any matter of foot Presiimp- which the law presumes in his favour, or as to which the burden of f^ proof lies upon the other side, unless the same has first been speci- fically denied. [E^. Consideiation for a bill of exchange where the plaintiff sues only on the bill, and not for the consideration as a substantive groond of claim.] 30. In actions for damage by collisions between vessels, unless the Frelimi- Court or a judge shall otherwise order, each solicitor shall, before """y -^*^- any pleading is delivered, file with the proper officer a document to be called a Preliminary Act, which shall be sealed up and shall not be opened until ordered by the Court or a judge, and which shall contain a statement of the following particulars : — (a.) The names of the vessels which came into collision and the names of their masters. (&) The time of the eolliedon. (c.) The place of the collision. {dJ) The direction of the wind. (e.) The state of the weather. (/.) The state and force of the tide. (g,) The course and speed of the vessel when the other was first seen. (Aw) The Hghts, if any, carried by her. (i.) The distance and bearing of the other vessel when first seen. (k.) The lights, if any, of the other vessel which were first seen. {I.) Whether any lights of the other vessel, other than those first seen, came into view before the collision. (m.) What measures were taken, and wheu, to avoid the collision. (n.) The parts of each vessel which first came into contact 188 THE PRACTICE OF THE COURT. If both solicitors consent,, the Court or judge may order the Preliminary Acts to be opened and the evidence to be taken thereon without its being necessaiy to debVer any plead ingB, The object of the Preliminaiy Act is to have the leading circumstances of the collision placed in a formal documen- tary shape whilst fresh in the recollection of the parties ; any application, therefore, to amend the Act must be made at once, and no amendment will be allowed at the hearing {The VoHigem, Swa. 518 ; Ihe Frankland, L. R 3 Ad. 511 ; 41 L. J. Ad. 3). And Preliminary Acts are only required in actions by one ship against another for damage caused by collision, and not where an action is brought by some one other than the owner of the injured vessel, as, by the owner of cargo laden on board a ship, against that ship, for damage caused by collision with another vessel (The John Boyrie, 36 L. T. N. S. 29 ; 25 W. R. 756). A party should not, at the hearing, contradict his Pre- liminary Act {The Vortigem, sfwpra). And an order is in all cases necessary if it is desired to open the Preliminaiy Acts. The case is veiy seldom tried on the Preliminary Act only. Pleadings 29. Where an action proceeds in a district registiy, all pleadings in district ^^^ other documents required to be filed shall be filed in the district '^^^^* registry. ORDER XX, PLEADING MATTERS ARISING PENDING THE ACTION. Pleading 1. Any ground of defence which has arisen after action broughti ™???"j but before the defendant has delivered his statement of defence, and iRrnioii Arise pending before the time limited for his doing so has expired, may be pleaded hearing by tlie defendant in his statement of defence, either alone or together with other grounds of defence. And i^ after a statement of defence STATEMENT OF CLAIM. 1S9 has been delivered, any ground of defence arises to any set-off or counter-claim alleged therein by the defendant, it may be pleaded by the plaintiff in his reply, either alone or together with any other ground of reply. 2. Where any ground of defence arises after the defendant has de- livered a statement of defence, or after the time limited for his doing so has expired, the defendant may, and where any ground of defence to any setoff or counter-claim arises alter reply, or after the time limited for delivering a reply has expired, the plaintiff may, within eight days after such ground of defence has arisen, and by leave of the Court or a judge, deliver a further defence or further reply, as the case may be, setting forth the same. 3. Whenever any defendant, in his statement of defence, or in any farther statement of defence as in the last rule mentioned, alleges any ground of defence which has arisen after the commencement of the action, the plaintiff may deliver a confession of such defence, which confession may be in the Form No. 2 in Appendix (B.) hereto, with such variations as circumstances may require, and he may thereupon sign judgment for his costs up to the time of the pleading of such defence, unless the Court or a judge shall, either before or after the delivery of such confession, otherwise order. ORDER XXI. STATEMENT OF CLAIM. 1. Subject to Rules 2 and 3 of this Order, the delivery of state- Deliyeiyof ments of claim shall be regulated as follows : — atotement (a.) If the defendant shall not state that he does not require the delivery of a statement of claim, the plaintiff shall, unless otherwise ordered by the Court or a judge, deliver it within six weeks from the time of the defendant's entering his appearance. (h.) The plaintiff may, if he think fit, at any time after the issue of the writ of summons, deliver a statement of claim with the writ of summons or notice in lieu of writ of summons, or at any time afterwards, either before or after appearance, and although the defendant may have appeared and stated that he does not require a statement of claim : Provided that in no case where a defendant has appeared shall a statement be delivered more than six weeks after the appearance has been entered, unless otherwise ordered by the Court or a judge. 190 THE PRACTICE OF THE COURT. Time for delivery of statement of claim in actions in rem. Where writ is specially indorsed. (c.) Where a plaintiff delivers a statement of claim without being required to do so, the Coxirt or a judge may make such order as to the costs occasioned thereby as shall seem just, if it appears that the delivery of a statement of claim was unnecessary or improper. As to enlarging time, O. Ivii., r. 6. 3. In Admiralty actions in rem, the plaintiff sball, within twelve days from the appearance of the defendant, deliver his statement of claim. 4. Where the writ is specially indorsed, and the defendant has not dispensed with a statement of claim, it shall be sufficient for the plaintiff to deliver as his statement of claim a notice to the effect that his claim is that which appears by the indorsement upon the writ, unless the Coui-t or a judge shall order him to deliver a further state- ment. Such notice may be either written or printed, or partly written and partly printed, and may be in the Form No. 3 in Appendix (B.) hereto, and shall be marked on the face in the same manner as is required in the case of an ordinary statement of claim. And when the plaintiff is ordered to deliver such further statement, it shall be delivered within such time as by such order shallbe directed ; and, if no time be so limited, then within the time prescribed by Rule 1 of this Order. ORDER XXII. DEFENCE. Delivery of 1. Where a statement of claim is delivered to a defendant he shall statement deliver his defence within eight days from the delivery of the state- of dfifcmcs ' ment of claim, or from the time limited for appearance, whichever shall be last, unless such time is extended by the Court or a judge. As to demurrers, see O. xxviii., r. 3. A demurrer is a " defence " (Hodges v, Hodges, 2 Ch. D. 112 ; 24 W. R. 293). 2. A defendant who has appeared in an action and stated that he does not require the delivery of a statement of claim, and to whom a statement of claim is not delivered, may deliver a defence at any time within eight days after his appearance, unless such time is extended by the Court or a judge. DEFENCE. 191 4. Where the Court or a judge shall be of opinion that any all^i^ Admianon tions of fact denied or not admitted by the defence ought to have ?fjlf ""^^ been admitted, the Court may make such order as shall be just with respect to any extra costs occasioned by their having been denied or not admitted. 5. Where a defendant by his defence sets np any counter-claim KaiBiiig which raises questions between himself and the plaintiff alomr with ^"^^'^^ any other person or persons, he shall a App. IV., p. 441. PAYMENT INTO COUBT IN SATISFACTION. 201 3. Money paid into Court as aforesaid majytinless otherwise ordered by a judge, be paid out to the plaintiff, or to his solicitor on the written authority of the plaintiff. No affidavit shall be necessary to verify 'the plaintiff's signature to such written authority unless specially required by the officer of the Court 4. The plaintiff, if payment into Court is made before delivering a defence, may within four days after receipt of notice of such payment, or if Buch statement is first stated in a defence delivered then, may, before reply, accept the same in satisfaction of the causes of action in respect of which it is paid in ; in which case he shall give notice to the defendant in the Form No. 6 in Appendix (B.)^ hereto, and shall be at liberty, in case the sum paid in is accepted in satisfaction of the entire cause of action, to tax his costs, and, in case of non-payment within forty-eight hours, to sign judgment for his costs so taxed. The practice of tendering a certain sum in satisfaction of Tender, the plaintifif's claim in actions for salvage has long been in nse in the Court of Admiralty; and even if there are two pkintiffs who are bringing separate actions, the defendant may make a tender of a single sum in respect of both actions, if it is very difficult for him to ascertain the value of the services rendered by each. (The Jacob Landstrom, L R 4 P. D. 191 ; 4 Asp. M. C. N. S. 581.) Notice of ^uch tender must be served on the solicitor's for each plaintiff. For mere payment of money in satisfaction the practice formulated by the above rule might be employed, but the original Admiralty practice as to tenders is still in use. The solicitor of the defendant obtains a receivable order at the registry, which authorizes him to pay the sum he proposes to tender into the Bank of England to the account of the registrar. This order and the money having been left at the bank, a receipt for such sum is received there, a copy of which, together with a notice that the money has been paid into the bank and is tendered to the plaintiff, should be served on his solicitor. Such notice should include an offer to pay costs (as to costs of tender generally, see post, Oixler LV.) up to the date of tender, or it should state that the tender relates to the claim only, and give reasons why 1 App. IV., p. 442. 202 THE PRACTICE OF THE COURT. costs are not also tendered, and refer the question concern- ing them to the Court {The Hickman, L. R 3 Ad. 15 ; 39 L. J. Ad. 7 ; The Thracian, L. R 3 Ad. 504 ; 1 Asp. M. C. N. S. 207). For Form of Tender, see App. V. The sum tendered will not, however, be paid out until the conclusion of the suit {The Annie ChUds, Lush. 509), so that the prac- tice a£ to a tender differs in this respect from an ordinary payment into Court; as to which see r. 3, ante. A tender should be pleaded by the defendant in his defence. On an appeal from the Cinque Ports Commissioners, the defendant may tender a sum, which must be refused or accepted by the plaintiff {The Annette, L. R 4 Ad. 9 ; 42 L. J. Ad. 13). As to costs, see post, 0. Iv., Costs. ORDER XXXI. DISCOVERY AND INSPECTION. DiflooToiy. I. The plaintiff may, at the time of deliyering his statement of Time for claim, or at any subsequent time not later than the close of the plead- delivering iugg^-and a defendant may, at the time of delivering his defence, or at tioDBT^ any subsequent time not later than the close of the pleadings, without any order for that purpose, and either party may at any time, by leave of the Court or a judge, deliver interrogatories in writing for the examination of the opposite party or parties, or any one or more of such parties, with a note at the foot thereof, stating which of such interrogatories each of such persons is required to answer : Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose. Rule 1 of this Order regulates the time at which inter- rogatories should be delivered. It has been laid down that as a general rule the plaintiff ought not to deliver his interrogatories before the delivery by the defendant of the statement of defence (Mercier v. Cotton, 1 Q. B. D. 442 ; 46 L. J. Q. B. 184) ; nor the defendant administer his interrogatories before he has delivered his statement of defence (Disney v. Longboume, L. R 2 Ch. D. 774 ; 45 L. J. Ch. 532). If very strong reasons were given^ inteno- DISOOVEBT AND INSPECTION. 203 gatories might be allowed at an earlier period than the above, as in TheMuriUo, 28 L. T. N. 8. 374r; 1 Asp. M. C. N. S. 579, when the defendant appeared, stating he was " improperly sued as one of the owners of the ship." 2. The Court in adjusting the costs of the action shall at the instance of any party inquire or cause inquiry to be made into the propriety of exhibiting such inteirogatories ; and, if it is the opinion of the taxing master of the Court or judge that such interrogatories have been exhibited unreasonably, vezatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be borne by the party in fault 3. Interrogatories may be in the Form No. 7 in Appendix (B.) hereto, with such variations as circumstances may require. See App. lY.; and as to costs, see further, App. II., p. 373. 4 If any party to an action be a body corporate or a joint stock Corpora- company, whether incorporated or not, or any other body of persons tion>> empowered by law to sue or be sued, whether in its ovm name ov in the name of any officer or other person, any opposite party may apply at chambers for an order allowing him to deliver interrogatories to any member or officer of such coiporation, company, or body, and an order may be made accordingly. 6. Any objection to answering any one or more of several interro- Striking gatories, on the ground that it or they is or are scandalous or irrelevant, ^^^ inter- or not band fide for the purposes of the action, or that the matters '^'^ "^'* inquired into are not sufficiently material at that stage of the action, or on any other ground, may be taken in the affidavit in answer. All applications to set aside the interrogatories, on the ground that they have been exhibited unreasonably or vexatiously, or to strike out any interrogatory or interrogatories, on the ground that it or they is or are scandalous, may be made at chambers within four days after service of the interrogatories. By the rules of November, 1878, this rule replaced the former one. It regulates the manner of interrogating, and points out the reasons for which an interrogatoiy may be struck out. It has been laid down as a principle of prac- tice that interrogatories ought to be such as tend bond fide to support the case of the interrogator and to favour a 204 THE PRACTICE OF THE COURT. complete inquiry into the truth of the issue which is before the Court {Tlie Mary or Alexandria, L. R 2 AA 312 ; 18 L. T. N. S. 891 ; see also Benbow v. Low, K R 16 Ch. D. 93; 50 L. J. Ch. D. (C.A.) 35). Among interrogatories which are objectionable, it has been held that those the answers to which would tend to render the answerer liable to criminal proceedings must be included (The Mary or Alexandria, supra), also those which seek to discover on what evidence the opposite side will rely (The Commis- sioners of Sewers v. Glass, L. R 16 Eq. 302 ; 42 L. J. CL 345). Interrogatories have been allowed in a collision action, even though the information sought would nK)stly be found in the preliminary Acts {The Radnorshire, L. R 6 R D. 172 ; 49 L. J. Ad. D. 48). Interrogatories, how- ever, are seldom required in ordinary Admiralty actions. Axuwen. 6. Interrogatories shall be answered by affidavit, to be filed within ten days, or within such other time as a judge may allow. 7% An affidavit in answer to interrogatories shall, unless otherwise ordered by a judge, if exceetiing ten folios, be printed, and may be in the Form No. 8 in Appendix (B.) hereto, with such variations as cir- cumstances may require. 8. Rescinded. 9. No exceptions shall be taken to any affidavit in answer, but the sufficiency or otherwise of any snch affidavit objected to as insufficient shall be determined by the Court or a judge on motion or summons. 10. If any person interrogated omits to answer, or answers insuf- ficiently, the party interrogating may apply to the Court or a judge fur an order requiring him to answer, or to answer further, as the case may be. And an order may be made requiring him to answer or answer further either by affidavit or by vivd voce examinatiou, as the judge may direct. A person interrogated must answer according to the best of his knowledge, beUef, and information. If he is unable to answer a question he must say so with particularity, and that will be a sufficient answer {Tlie Minnehaha, L. R. 3 Ad. 148 (152) ; 23 L. T. N. S. 747), otherwise a further or better answer will be required of him* DISCOVERY AND INSPECTION. 205 As to the use of these answers as evidence at the hear- ing, see post, r. 23. 11. It shall be lawful for the Court or a judge at any time during Prodiic- the pendency therein of any action or proceeding, to order the pro- ^^^ duction by any party thereto, upon oath, of snch of the documents ments. in his possession or power relating to any matter in question in Buch action or proceeding, as the Court or judge shall think right ; and the Court may deal with such documents, when pro<]uced, in such manner as shall appear just. 12. Any party may, without filing any affidavit, apply to a judge for an order directing any other party to the action to- make dis- coveiy on oath of the documents which are or have been in his pos- session or power relating to any matter in question in the action. These two rules enable a party to obtain the production of documents relating to the action, or to discover first of all what documents the other party to the action may possess. Having regard to J. A. 1873, s. 25, sub-s. 11, the rules of equity must govern the practice in this matter. Every document asked for must be produced, unless it is protected from being seen on the ground of privilege (Bustros V. White, 1 Q. B. D. 422 ; 45 L. J. Q. B. 642). And the right to discovery extends to every document which may throw light on the case (Hutchinson v. Glover, 1 Q. B. D. 138; 45 L. J. Q. B. 120, where terms of a compromise of an action of collision were ordered to be inspected). But reports of surveys held solely for the purpose of the action are privileged (The Theodore Komer, L. R. 3 P. D. 112 ; 47 L. J. Ad. D. 85) ; but not letters which would disclose trade secrets (The Don Frandaco, Lush. 468). In an action against the Queen's ships, the Court will not order the commander's reports to the Admiralty to be produced (H. M. S. Belierophon, 44 L. J. Ad. 5 ; 3 1 L. T. N. S. 756). Upon oath means an affidavit in which the documents must be described. 206 THE PRAcrricE of the court. 13. The affidavit to be made by a party against whom such older as is mentioned in the last preceding rule has been made, shall specify which, if any, of the docomeuta therein mentioned he objects to produce ; and it may be in the Form No. 9 in Appendix (B.) hereto, with such variations as circumatances may require. See App. IV. Notice to 14. Every party to an action or other proceeding shall be entitled^ produce. ^^ g^^j ^jj^g before or at the hearing thereof, by notice in writing, to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his solicitor, and to permit *him or them to take copies thereof ; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such action or proceeding, unless he shall satisfy the Court that such document re- lates only to his own title, he being a defendant to the action, or that he had some other sufficient cause for not complying with such notice. 15. Notice to any party to produce any documents referred to in his pleading or affidavits shall be in the Form No. 10 in Appendix (B.) hereto. 16. The party to whom such notice is given shall, within two days from the receipt of such notice, if aU the documents therein refened to have been set forth by him in such affidavit as is mentioned in rule 13, or if any of the documents referred to in such notice have not been set forth by him in any such affidavit, then within four days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his solicitor, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice may be in the Form No. 11 in Appendix (B.) hereto, with such variations as circumstances may require. 17. If the party served with notice under rule 15 omits to give such notice of a time for inspection, or objects to giye inspection, the party desiring it may apply to a judge for an order for inspection. Rr. 15, 16, and 17 apply, it will be observed, to docu- meots mentioned in the pleadings and affidavits. In the , case of foreign owners of ^ ship the times in r. 16 will be changed to a reasonable time, according to the distance which the parties may be from this country and to other circum- stances {The Emma, 34 LT. N. S. 742; 3 Mar.L. C. N. S. 218). DISCOVERY AND INSPECTION. 207 18. Every application for an order for inspection of documents Inapection sluU be to a judge. And except in the case of documents referred ^^1^' to in the pleadings or affidavits of the party against whom the application is made, or disclosed in his affidavit of documents, such application shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The principles applicable to rr. 11 and 12 of this order are in point as regards r. 18. B. 18 is of service chiefly when documents have not been required to be produced or discovery made, and when one party has some knowledge of those in the possession of the other ; otherwise, as a matter of fact^ this rule is to all intents and purposes the same as r. 11, since if a party obtains the production of a document he is sure to be able to inspect it. But a party should always before proceeding to obtain an order for inspection request the opposite party to give him inspection, otherwise he is liable to be con* demned in the costs of the motion (The Memphis, L. B. 3 Ad. 23 ; 21 L T. N. S. 727). And an affidavit under rule 18 should state as distinctly as possible of what docu- ments inspection is sought {The Cordelia, 28 L. T. N. S. 776 ; 2 Asp. M. C. N. S. 33 ; a case which may be applied to the above rule). 19. If the party from whom discoveiy of any kind or inspection is sought objects to the same or any part thereof, the Court or a judge may, if satisfied that the right to the discoveiy or inspection sought depends on the determination of any issue or question in dispute in the action, or that for any other reason it is desirable that any iRSue or question in dispute in the action should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection. 20. If any party fails to comply with any order to answer inter- Failura to rogatories, or for discovery or inspection of documents, he shall be oomply. liable to attachment He shall also, if a plaintiff, be liable to have his action dismisiied for want of prosecution, and, if a defendant, to 208 THE PRACTICE OF THE CJOURT. have his defence, if any, strack out, and to be placed in the same position as if he had not defended ; and the party interrogating may apply to the Court or a judge for an order to that effect, and an order may be made accordingly. Service. 21. Service of an order for discovery or inspection made against any party on his solicitor shall be sufficient service to found an application for an attachment for disobedience to the order. But the party against whom the application for an attachment is made may show in answer to the application that he has had no notice or knowledge of the order. Liability 22. A solicitor upon whom an order against any party for discoveiy of solicitor, qj. inspection is served under the last rule, who neglects without reasonable excuse to give notice thereof to his client, shall be liable to attachment Use of 23. Any party may, at the trial of an action or issue, use in evidence answers at any one or more of the answers of the opposite party to interrogatories without putting in the others : Provided always, that in such case the judge may look at the whole of the answers, and if he shall be of opinion that any other of them are so connected with those put in that the last-mentioned answers ought not to be used without them, he may direct them to be put in. Parti- Somewhat in the nature of discovery is the demand by cuiars. ^^^ party from the other of particulars of matters men- tioned in the pleadings. This is a common practice in the other divisions of the High Court, but is unusual in the Admiralty Division. Such a demand will be generally refused (The Freedom, L. R. 2 Ad. 346; 3 Asp. M. C. 0. S. 219, 262), except sometimes when particulars are sought, in actions of damage to cargo, as of the perils, accidents, and causes which occasioned a short delivery, and are pleaded by the defendant (The HaJcon Adelsteen, 43 L. J. Ad. 9), or for the purpose of admitting some liability {The Wetterhom, 34 L. T. N. S. 587; 24 W. R 324 ; 3 Asp. M. C. N. S. 168), or of damage to a ship which has been totally lost at sea {The N. P. NeUson, 34 L. T. N. S. 688 ; 24 W. R. 324 ; 3 Asp. M. C. N. S. 169). Where a suit is brought for necessaries or wages, the plaintiff is bound to furnish accounts in the nature of particulars before bringing such an action {The Fleur de Lis, L. R 1 Ad. 39). INQUIRIES AND ACCOUNTS. 209 ORDER XXXIL ADMISSIONa 1. Any party to an action may give notice, by his own statement Admia- or otherwise, that he admits the trath of the whole or any part of the JIS^^ case stated or referred to in the statement of claim, defence, or zeply of docu- of any other party. ments. 2. Either party may call upon the other party to admit any docu- ment, saving all just exceptions ; and, in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the action may be, unless at the hearing or trial the Court certify that the refusal to admit was reasonable ; and no costs of proving any document shall be allowed unless such notice be given, except where the omission to give the notice is, in the opinion of the taxing officer, a saving of expense. 3. A notice to admit documents may be in the Form No. 12 in Appendix (B.) hereto. 4. An affidavit of the solicitor or his clerk, of the due signature of any admissions made in pursuance of any notice to admit documents, and annexed to the affidavit, shall be sufficient evidence of such admissions. The notice to admit should be given within a reasonable time before the hearing of the action. ORDER XXXIII. INQUIRIES AND ACCOUNTS. The Court or a judge may, at any stage of the proceedings in a Inquiries cause or matter, direct any necessary inquiries or accounts to be made *^^ or taken, notwithstanding that it may appear that there is some special or further relief sought for or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner. The jurisdiction of the Court to go into accounts between co-owners of ships under A. C. Act, 1862, s. 8, has already been pointed out^ arUe, Part I., p. 77. The above rule still P 210 THE PRACTICE OF THE COURT. further enlarges the jurisdiction of the Court. For example in an action for wages by a master, in which complicated questions of accounts arise, and where it may be doubtful if any sum is due, and where there is another distinct ground of defence, as, misconduct, the Court may, under the above rule, order the accounts to be gone into before the further issue is tried ; and in an action for necessaries the Court made use of this order {The Stilly, 48 L J. Ad. D. 56). References When, in order to do full justice in a cause, matters trJ^d of detail relating to accounts, or to the assessment of merchants, damages, should be investigated, after an unascertained sum has been pronounced to be due, it has been the immemorial practice to refer such matters to the registrar alone or assisted by merchants, that he may report thereon to the Court (and see A. C. Act, 1861, a. 23), for it may be laid down as a principle that the Court does not assess damages. Questions of law cannot, however, be referred {The Ocean, 10 Jur. 506). But, where the amount in dis- pute is so small that the further expense consequent on the reference is not justifiable, or where the Court can with ease settle the matt^ itself, then the above rule is not followed {The Eleanore, Br. & L. 135; 33 L. J. Ad. 19), as in a question of consequential damages {The Maid of Kent, 50 L. J. Ad. 71). The reference not only may be for the purpose of carrying out the decree of the Court, but also to find facts on which its judgment may be wholly or partially based : it may be ordered by the judge after he has decided the main point in the action, such as whether a bottomry bond was valid or invalid, or in the course of the action before the hearing of the cause. Thus, in an action on a bottomry bond, the accounts were referred to the registrar and merchants, and on their finding that the charges in respect of which the bond was given were improper, it was pronounced against {The Roderick Dhv., Swa. 177); and, when a bond was admitted to be valid, the INQUIRIES AND ACCOUNTS. 211 items for which it was given were referred {The Olenmanna, Lush. 115). In an action for necessaries, some sum being due, the registrar will decide upon the actual amount (TJie West FHesUiTid, Swa. 456); and the practice is the same in an action for wages and disbursements {The Glentav/ner, Swa. 415 ; The DaHng, L. R 2 Ad. 260). So, too, in an action for salvage, if it were necessary, any question of the amount of expenses and damage incurred in rendering the service may be referred {The Scdacia, 2 Hagg. 262 ; The Oscar, 2 Hagg. 257); but this practice is now seldom resorted to, see arUe, Ch. I., Salvage. In those rather rare cases also when damages are ordered to be paid for im- properly arresting a vessel, they will be assessed by the registrar {The Cathcart, L. R. 1 Ad. 314 ; The Don Ricardo, L. R 5 R D. 121 ; 49 L. J. Ad. 28). Moreover, the matter may be referred with directions to the registrar to observe certain principles of law in his in- vestigation {The St Cloud, Br. & L. 3 (19). And, where several actions have been consolidated, one of such actions can be referred separately, if convenient, without any reference of the others {The Helen R. Cooper, L. R 3 Ad. 339 ; 40 L, J. Ad. 46). The order of reference is obtained at the time of the decree from the registrar, and thereupon the practice set out in the following rules from the A. C, R 1859, must be followed. 107. The fuUowing rules shall apply to references by the judge to The rule* the registrar, whether the reference be to the registrar alone, or to *" ^. the registrar assisted by one or two merchants. reference!? 108. Within twelve days from the day when the order for the xime. reference is made, the solicitor for the claimant shall file the claim and affidavits ; and, within twelve days from the day when the claim and affidavits are filed, the adverse sohcitor shall file his counter- affidavits. 109. From the filing of the counter-affidavits six days only shall be allowed for filing any further affidavits by either solicitor, save by order of the judge, or by permission of the registrar. 212 THE PRACTICE OF THE COURT. Adjourn- ment. Produc- tion of witnesses. Counsel. Costs. FiUng repozt. Objection to report Printing. The pructice. 110. Within three days from the expiration of the time allowed for filing the last affidavits, the solicitor for the claimant shall file in the registry a notice, with the stamps for the reference affixed thereto, praying to have the reference placed on the list for hearing ; and, if he shall not do so, the adverse solicitor may apply to the Court to have the claim dismissed with costs. 111. At the time appointed for the reference, if either solicitor be present, the .reference may be proceeded with ; but the registrar may adjourn the reference from time to time, as he may deem prc^r. 112. Witnesses may be produced before the registrar for examina- tion, and the evidence shall, on the application of either solicitor, but at the expense, in the first instance, of the party on whose behalf the application is made, be taken down by a short-hand writer or reporter appointed by the Court, who shall be sworn faithfully to report the evidence : and a transcript of the short-hand writer's or reporter's notes, certified by him to be correct, shall be admitted to prove the oral evidence of the witnesses in an objection to the registrar's report. 113. Counsel may attend the hearing of any reference, but the expenses attending the employment of counsel shall not be allowed on taxation, unless the registrar shall be of opinion that the attend- ance of counsel was necessary. 114. The registrar may, if he think fit, report whether any and what part of the costs of the reference should be allowed, and to whom. 115. The solicitor for the claimant shall, within six days from the time when he has received a notice from the registry that the report is ready, take up and file the same in the registry. 116. If the solicitor for the claimant shall not take the steps pre- scribed in the next preceding rule, the adverse solicitor may take up and file the report, or may apply to the Court to have the claim dis- missed with costs. 117. A solicitor intending to object to the registrar's report shall, within six days from the filing of the report, file in the registry a notice, a copy of which shall have been previously served on the adverse solicitor ; and within a further period of twelve days he shall file his petition in objection to the report. 118. All the rules hereinbefore prescribed respecting the pleadings and proofs in a cause, and the printing thereof shall, so far as they are applicable, apply to the pleadings, proofis, and printing in an objection to a report of the registrar. The claim referred to in Rule 108 is a statement vhich comprises the several items of the claimant's demand. It INQUIRIES AND ACOOUNTS. 213 must be headed in the same manner as a statement of claim^ with the name and number of the cause, and so forth. The several items in the body of the claim should be clearly specified and numbered consecutively (see Pre- cedent, App. y.) ; with the claim should be filed the re- ceipts and vouchers which relate to it, numbered so as to correspond with the items to which they refer. Notice of the day and time at which the hearing is fixed is sent from the registry to the solicitors engaged in the case. By r. Ill it will be seen that the registrar has full power to adjourn the hearing, and he will do so for any reasonable cause. But, if the adjournment is rendered necessary through the carelessness of the applicant for such adjournment, he will have to pay any costs which it may occasion {The Kepler, Lush. 201). R 112 permits witnesses to be examined vivd voce if necessary or desirable. As to costs, Beepost, O. Iv.; and as to fees, App. II. After the case has been heard, the registrar draws up his report, which contains, in important The report cases, the reasons of the decision at which he has arrived, and annexed thereto in all cases is a schedule which shows the several items allowed or disallowed. Sometimes, where a question of law arises upon which the registrar desires the opinion of the Court, he will state a special case for this purpose (see The John BeUxmiy, L. R 3 Ad. 129 ; 39 L. J. Ad. 28) ; when the report is silent as to costs, it is a common practice to take out a summons to confirm it, which is generally quite unnecessary except under these circumstances. Three courses may be followed after the report has been drawn up and notice thereof has been sent to the respec- tive solicitors. (1) The plaintiffs solicitor may take up and Objections file the report in the registry ; or (2), the solicitor for the ^ ^^^ defendant may take it up and file it, or move the Court to dismiss the claim according to r. 116 (ante) ; or (3), either party, when the report has been filed, may proceed to 214 THE PRACTICE OF THE COUKT. object to it. R 117 (arUe) is then applicable. After notice of objection the report may be brought before the Court in two ways. A petition in objection may be filed according to rr. 117 and 118, and to this and the subsequent pleadings the rules asi to the form and manner of ordinary pleadings are applicable. For precedent, see App. VI. ; the ordinary notice of trial and entry for hearing must take place, and the cause will then come on in its order (see post, O. xxxvi. On the other hand, if both parties consent, which written consent should be filed in the registry, the matter maybe brought before the Court on motion (see The Ednumd, Lush. 211). The procedure at the hearing of l^e petition is the same as at the hearing of an ordinary action. Fresh evidence will not be allowed unless the Court is satisfied that it could not by proper diligence and application have been produced before the registrar ; and an application for this purpose must be supported by affidavits, stating pre- cisely the character of the new evidence which is required (The Flying Fish, Br. & L. 436 ; 34 L. J. Ad. 113 ; The Thuringia, 41 L. J. Ad. 20 ; 26 L. T. N. S. 446). No objection can be taken to any item which was not objected to before the registrar {The Princess Hdena, Lush. 191 ; 30 L. J. Ad. 137), in fact, a new case will not be allowed to be set up {The Olenmanna, Lush. 115). The whole burden of proof lies on the party who objects to the report {The OazeUe, 2 W. Bob. 286), for there is a strong presumption in favour of its correctness (2%e Sir Oeorge Seymov/r, 1 Spk. 67), so that it requires weighty reasons to induce the Court to reverse it. The Court may confirm the report, or allow all or some of the objec- tions. In the latter case it may direct a second reference {Th^ Matchless, 10 Jurist, 1017; {The Flying Fish, anU), or send the report back for reconsideration as to the items which have been objected to, or itself make the altera- tions. In one case the judge himself reheard the refer- ence with the registrar and merchants, assisted by a QUESTIONS OF LAW. 215 surveyor and a merchant {The Sir Greorge Seymour, 1 Spk. 67). ORDER XXXIV. QUESTIONS OF LAW. 1. The parties may, after the writ of summons has been issued, Special concur in stating the questions of law arising in the action in the form *^^^^ of a special case for the opinion of the Court Every such special case shall be divided into paragraphs numbered consecutively, and shall concisely state such facts and documents as may be necessaiy to enable the Court to decide the questions raised thereby. Upon the aigument of such case the Court and the parties shall be at liberty to refer to the whole contents of such documents, and the Court shall be at liberty to draw from the facts and documents stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial. 2. If it appear to the Court or a judge, either from the statement of claim or defence or reply or otherwise, that there is in any action a question of law which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to a referee or arbitrator, the Court or judge may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court or judge may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed. 3. Every special case shall be printed by the plaintiff, and signed by the several parties or their solicitors, and shall be filed by the plaintiff. Printed copies for the use of the judges shall be delivered by the plaintiff. 4. No special case in an action to which a married woman, infant or person of unsound mind is a party shall be set down fur argument without leave of the Court or a judge, the application for which must be supported by sufficient evidence that the statements contained in such special case, so far as the same affect the interest of such married woman, infant, or person of unsound mind, are true. 5. Either party may enter a special case for argument by delivering to the proper officer a memorandum of entry, in the Form No. 13 in Appendix (B.) hereto, and also if any married woman, infant, or per- 216 THE PRACTICE OF THE COURT. 8on of tmsoimd mind be a party to the action, producing a copy of the order giving leave to enter the same for argument. A special case for the purpose of raising a question of law was formerly seldom used in the Court of Admiralty ; but it is now of more frequent use, and, when convenient, this form of procedure may well be employed. R 1 refers to a case stated by consent of the parties ; r. 2 by the Court, on the application of one of the parties. The application under r. 2 should be by a summons to show cause why the tacts should not be stated in a special case, and the applicant should have an affidavit showing that no facts are in dispute in the action. The Court of Appeal has decided that an order may be made any time after the defendant has appeared, and even before the delivery of the statement of claim (Metropolitan Board of Works u The New Eiver Co., L. R 2 Q. B. 67 ; 36 L. J. Q. B. 183). For form of case, see The Two EUena, L. R 3 Ad. 345 ; 4fl L. J. Ad. 33. As to special case by registrar after a reference, see ante, 0. xxxiiL p. 213. By R. 9 (April, 1880) the parties may agree to pay a fixed sum according to the decision of the case. ORDER XXXV. PBOCEEDIKGS IN DISTRICT REGISTRIES. 18. Older XXXV., role 1, of the '' Rules of the Supreme Court" is hereby annulled, and the following shall stand in lieu thereof : — Proceed- 1. Where an action proceeds in the district registry aU proceedings, ines to be g^ggpt where by any of the rules of the Supreme Court it is otherwise district provided, or the Court or a judge shall otherwise order, shall be regiitries. taken in the district registry, down to and including final judgment, AMd every final judgment and every order for an account by reason of the defeiult of the defendant or by consent shall be entered in the district registry in the proper book, in the same manner as a like judgment or order in an action proceeding in London would be entered in London. PROCEEDINGS IN DISTRICT REGISTRIES. 217 Where an action proceeds in the district legistiy^ final judgment shall be entered in such registry, unless the judge at the trial or the Court or a judge shall otherwise order. 2. Subject to the foregoing rules, where an action proceeds in the district registry the judgment and all such orders therein as require to be entered, except orders made by the district registrar under the authority and jurisdiction vested in him under these rules, shall be entered in London, and an office copy of every judgment and order so entered shall be transmitted to the district registry to be filled with the proceedings in the action. 3. Where an action proceeds in the district registry all writs of Writs of execution for enforcing any judgment or order therein shall issue ©^tocution from the district registry, unless the Ck>urt or a judge shall otherwise direct. Where final judgment is entered in the district registry costs shall be taxed in such registry unless the Court or judge shall other- wise order. . As to writs of execution, see Oo. xlii., xliii., et seq, 4. Where an action proceeds in a district registry the district Jurisdic- registrar may exercise all such authority and jurisdiction in respect of j.^?J* *. the action as may be exercised by a judge at chambers, except such regiatrar. as by these rules a master of the Queen's Bench, Common Pleas, or Exchequer Divisions is precluded from exercising. As to jurisdiction of registrar at chambers, see 2^8t, 0. Uv. 5. Every application to a district registrar shall be made in the same manner in which applications at chambers are directed to be made by these rules. See O. liv. r. 1. 6. If any matter appears to the district registrar proper for the References decision of a judge, the registrar may refer the same to a judge, and ^ j^dge. the judge may either dispose of the matter or refer the same back to the r^strar with such directions as he may think fit. 7. Any person affected by any order or decision of a district regis- Appeal trar may appeal to a judge. Such appeal may be made notwith- J.^?.^ standing that the order or decision was in respect of a proceeding or registrar, matter as to which the district registrar had jurisdiction only by consent. Such appeal shall be by summons within four days after the decision complained o^ or such further time as may be allowed by a judge or the registrar. 218 THE PRACTICE OF THE COURT. Removal of action from district registiy. 8. An appeal from a district registrar ahall be no stay of proceedings unless so ordered by a judge or the registrar. 9. Every district registrar and other officer of a district regixttry shall be subject to the orders and directions of the Court or a judge as fully as any other officer of the Court ; and every proceeding in a district r^istry shall be subject to the control of the Court or a judge, as fully as a like proceeding in London. 11. In any action which would, under the foregoing rules, proceed in the district registry, any defendant may remove the action from the district registry as of right in the cases, and within the times, following : — Where the writ is not specially indorsed, any defendant may remove the action as of right at any time after appearance and before delivering a defence, and before the expiration of the time for doing so. As to procedure, see The General Birch, 33 L. T. N. S. 792 ; 24 W. R. 24, ante, note to 0. xii., r. 5. By party 11a. In an Admiralty action in rem, any person who may have interven- ^^^ intervened and appeared may remove an action from a district regit»try as of right Procedure. 12. Any defendant desirous to remove an action as of right under rule 11 may do so by serving upon the other parties to the action, and delivering to the district registrar, a notice, signed by himself or his solicitor, to the effect that he desires the action to be removed to London, and the action shall be moved accordingly : Provided, that if the Court or a judge shall be satisfied that the defendant giving such notice is a merely formal defendant, or has no substantial cause to interfere in the conduct of the action, such Court or judge may order that the action may proceed in the district registiy notvrithstanding such notice. 13. In any case not provided for by the last two preceding rules, any party to an action proceeding in a district registry may apply to the Court or a judge, or to the district registrar, for an order to remove the action from the district registry to London ; and such Court, judge, or registrar may make an order accordingly, if t«atisfied that there is sufficient reason for doing so, upon such terms, if any, as shall seem just^ Any party to an action proceeding in London may apply to the Court or a judge for an order to remove the action from London to any district registry ; and such Court or judge may make an order accordingly, if satisfied that there is sufficient reason for doing so, upon such terms, if any, as shall seem just TRIAL. 14. Whenever any proceedings are removed from the district registry to London, the district registrar shall transmit to the proper officer of the High Court of Justice all original documents, if any, filed in the district registry, and a copy of all entries in the hooks of the district registry of the proceedings in the action. 16. Every district registrar shall account for and pay over to the Treasury all moneys paid into Court at the registry of which he is registrar, in such manner and at such times as may he from time to time directed hy the Treasury. 219 ORDER XXXVIJ TRlkJj. 2. Actions shall be tried and heard either before a judge or judges, or before a judge sitting with assessors, or before a judge and jury, or before an official or special referee, with or without assessors. Ad action is always tried in the Admiralty Division by Trial of the judge alone, or assisted by assessors. As to assessors, j^^^^^d see J. A. 1873, s. 56, and post, r. 28. The Admiralty Divi- jury, sion possesses no machinery for summoning jurors, but by 3 & 4 Vict. c. 65, ss. 11 — 16, the Court of Admiralty had power to direct a trial by jury in London, or at the county assizes, of any specified issue. Such power was occa- sionally but rarely used (see Tfie Han^iet, 1 W. Rob. 439, where an issue was directed to try the existence of a custom). Under rr. 27 and 29 of this Order, the judge of the Admiralty Division has a similar power ; and, there- fore, if it were desired to try an action by a judge and jury, application could be made to the judge under these rules, and the cause, if so tried, would, so far as the particular issue in dispute was concerned, continue under the procedure in use in the other division of the High Court. As to referees, it would be quite feasible to employ them, 1 The portions of the following rules, which relate to trial by jury, have been omitted, as inapplicable to the practice in the Admiralty Division. 220 THE PRACTICE OF THE COURT. Time for notice of trial. Dismissal of action for want of prose- cution. Ten days* notice of trial. Notice of trial but the registrar's or deputy-registrar's duties are very analogous to those intended of the official referees. As to references to registrar and merchants^ see O. xxxiii., p. 210. 3. Subject to the provisions of the following rales, the plaintiff may, with his reply, or at any time after the close of the pleadings, give notice of trial of the action. 4. Subject to the provisions of the following rules, if the plaintiff does not, within six weeks after the close of the pleadings, or within such extended time as a Court or judge may allow, give notice of trial, the defendant may, before notice of trial given by the plaintiff, give notice of trial. 4a. The defendant, instead of giving notice of trial, may apply to the Court or judge to dismira the action for want of prosecution ; and, on the hearing of such application, the Court or a judge may order the action to be dismissed accordingly, or may make such other order, and on such terms, as to the Court or judge may seem just This rule is applicable if there is undue delay on the part of the plaintiff; and, if the defendant have a counter- claim in such an action, having obtained the dismissal of the plaintiff's claim, he can move for judgment on his own counter-claim (Aitken v. Dunbar, 46 L. J. Ch. 489). 6. Subject to the provisions of the preceding rules, the Court or a judge may, in any action at any time or from time to time, order that different questions of fact arising therein be tried by different modes of trial, or that one or more questions of fact be tried before the others, and may appoint the place or places for such trial or trials, and in all cases may order that one or more issues of fact be tried before any other or others. 9. Ten days* notice of trial shall be given, unless the party to whom it is given has consented to take short notice of trial ; and shall be sufficient in all cases, unless otherwise ordered by the Court or a judge. Short notice of trial shall be four days' notice. 10. Notice of trial shall be given before entering the action for trial. Notice of trial must be given to the opposite party : as to the time at which notice may be given {ante, r. 3, and as to length of notice, ante' r. 9). Under O. Ivii., r. 7, which is specially applicable to Admiralty actions, the TRIAL. 221 judge on summons or motion can dispense with notice of trial, or abridge it and fix an early day for the hearing of the cause, as is often done when there is any pressing reason for a speedy trial. 10a. Unless within six days after notice of trial is given the cause Entiy for shall be entered for trial by one party or the other, the notice of trial ^"^ shall be no longer in force. 11. Notice of trial shall not be or operate as for any particular Notice, sittings ; but shall be deemed to be for any day after the expiration of the notice on which the action may come on for trial in its order upon the list As soon as notice has been giren to the opposite side, the party who is desirous of having the action tried should enter his cause at the registry, where it will be placed on the list for hearing, and will then come on according to its position on the list, or according to the terms of any order which may have been made by the judge on application to fix a day for the hearing. Actions proceeding in district registries must be entered at such registries, and the papers are then forwarded to London. And as to fixing an early day for the trial, see note to preceding rule. 13. No notice of trial shall be countermanded, except by consent, Coanter- or by leave of the Court or a judge, which leave may be given subject ™*^ding to such terms as to costs, or otherwise, as may be just. SSiJ* 14. If the party giving notice of trial (for London or Ididdlesex), Entry of omits to enter the cause for trial on the day of or day after giving action, notice of trial, the party to whom notice has been given may, unless the notice has been coimtermanded under the last rule, within four days, enter the action tor trial. 17. The party entering the action for trial shall deliver to the officer Copies of two copies of tie whole of the pleadings in the action, one of which pleadings, shall be for the use of the judge at the trial. Such copies shall be in print, except as to such parts, if any, of the pleadings as are by these rules permitted to be written. These pleadings must be delivered at the registry. 18. If^ when an action is called on for trial, the plaintiff appears, Non-ap- and the defendant does not appear, then the plaintiff may prove his peanmceof claim, so far as the burden of proof lies upon him. at^he^g. 222 THE PRACTICE OF THE COURT. Non-ap- 19. If, when an action is called on for trial, the defendant appean, ^^L^tiflT *^^ *^® plaintiff does not appear, the defendant, it' he has no counter^ claim, shall be entitled to judgment dismissing the action, but, if he has a counter-claim, then he may prove such claim so far as the burden of proof lies upon him. Practice One of the first occasions on which rule 18 was used in hearing. ^^® Admiralty Division was in the case of The WiUiam Lecklie, Nov. 10, 1881. The case was shortly opened, and one witness called to prove the facts. Generally, however, — to come to ordinary defended actions, — it is the practice to dispense with any opening statements, and to proceed at once to the evidence. Unless the case is one of great length or diflBculty the costs of two counsel only on each side will be allowed on taxation. But in a salvage suit plaintiflFs whose interests are adverse to each other may be represented by separate coimsel (The Scout, L. R 3 Ad. 514 n.; 41 L. J. Ad. 42). The rule that the party on whom the burden of proof lies must begin is applicable to Admiralty actions. And after some diversity of practice it is now settled that in all damage causes, whether inevitable accident be pleaded or not, the plaintiff must begin (The Otter, L. R. 4 Ad. 203 ; 30 L. T. N. S. 43). Where there are rival salvors, and the actions have been consolidated, those have the right to begin who have first entered their causes (The Morocco, 24 L. T. N. S. 598). Opening statements by counsel are, as above stated, unusual, and the witnesses are at once examined by their counsel, are cross-examined by the opposite counsel, and then re-examined. But the counsel of rival salvors may cross-examine each other's witnesses on points as to which they are at issue (The Morocco, 24 L. T. N. S. 598). When the evidence is given on affidavits, these have only to be read to the Court. After the evidence on both sides is con- cluded, the leading counsel for the plaintiff addresses the Court, who is followed by that of the defendant, and the TRIAL. 223 counsel for the plaintiff has a right to reply. Should a point of law arise, the Court will hear two counsel on each side. At the conclusion of the trial, unless the judge defers his decision, he gives an ahsolute judgment or a judgment subject to a reference to the registrar and merchants (see antCy 0. xxxi.). But in either case the decree will then be entered in the minute book by the registrar (see O. xlL, and the remarks thereon ^). Each Mritness during the hearing of the cause should be kept out of Court until his evidence is required. After each witness is sworn, the solicitor who produces him should hand a slip of paper containing the name and number of the cause and the full name of the witness to the registrar. For fees payable, see App. II., p. cxxix. 21. The jad^e may, if he think it expedient for the interests of Adjourn- justice, postpone or adouni the trial for such time and upon such ™®°^ terms, if any, as he shall think fit 28. Trials with assessors shall take place in such manner and upon TrialB with such terms as the Court or a judge shall direct. asBedsore. The assessors of the judge, where he requires advice on Trinity the nautical facts of the case, are two of the Trinity masters ; their duty is solely to advise, and the responsi- bility for the decision of the case rests wholly with the judge {The Magna Charta, 25 L. T. N. S. 512 (P. C.) ; The Aid, L. R 6 P. D. 84 ; 50 L. J. Ad. D. 40). In actions of damage and salvage their attendance may be obtained as a matter of course by filing a praecipe in the registry requesting their attendance (for fees payable see App. II.). In other than these actions their attendance will only be granted after application to the judge ; in salvage cases the practice, has been assimilated to that in actions for damage by collision. Where Trinity masters are present, evidence in regard to matters of nautical skill is inadmis- sible {TJve Ann and Mary, 2 W. Rob. 189 ; The Sir Robert ^ Rtdes 24, 25, 29a— 34 of this Order are not applicahle to trials in the Admiralty Division. 224 THE PRACTICE OF THE COURT. Peel, 43 L. T. N. S. 364 (C. A.) ; 4 Asp. M. C. N. S. 321). Where one party applies the judge will, in practice, exer- cise his discretion as to granting the request {The How- thandel, 1 Spk. 27). A fee of two guineas a day is paid to each of the assessors. In damage causes where each party is held to blame, the fees are divided between the two parties. Jn«P«jtion Either party may apply to the Court for an order per- mAsters. miting the assessors to view any property the inspection of which may be material to the isaue in dispute (A. C. A. 1861, s. 18); in so doing they should if necessary be accompanied by the solicitors of the parties {The Oer- mania, 37 L. J. Ad. 59 ; 19 L. T. N. S. 20. 27. The Court or a judge may, if it shall appear either before or at the trial that any issue of fact can be more conveniently tried before a jury, direct that such issue shall be tried by a judge with a jury. 29. In any cause the Court or a judge of the division to which the cause is assigned may, at any time or from time to time^ order the trial and determination of any question or issue of fact, or partly of fact and partly of law, by any commissioner or commissioners appointed in pursuance of 29th section of the said Act, or at the sittings to be held in Middlesex or London, and such question or issue shall be tried and determined accordingly. ORDER XXXVII. EVIDENCE GENERALLY. Evidence. 1« In the absence of any agreement between the parties, and subject to these rules, the witnesses to the trial of any action or at any assess- ment of damages, shall be examined vivd voce and in open Court, but the Court or a judge may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court or judge may think reasonable, or that any witness whose attendance in Court ought for some sufficient cause to be dispensed with, be examined by interrogatories or otherwise before a commissioner or examiner ; provided that, where it appears to the Court or judge that the other party bond fdt desires the production EVIDENCE GENERALLY. 225 of a witness for cross- examination, and that such witness can be pro- duced, an order shall not be made authorizing the evidence of such witness to be given by affidavit It is now the rule that witnesses are examined vivd voce before the Court, unless the parties consent that the evidence shall be taken on affidavit, or unless the judge on application orders the evidence to be taken by affidavit or the witness to be examined before a com- missioner or examiner. Sometimes also witnesses are examined in Court before the actual hearing of the cause, either by consent of the parties or by an order obtained by a summons. Such a consent as above mentioned must be in writing (The New Westminster Brewery Co. u Hannah, L. R 1 Ch. D. 278 ; 24 W. R. 137). As to evidence on affidavit, see post, O. xxxviii ; and, as to examination of witnesses before an officer of the Court, see post, r. 4 of this order; and, as to rejection of evidence to nautical skill where Trinity masters are present, see UTUe, O. xxxvii., r. 28. As regards logs of light-ships or light-houses, a copy accompanied and certified by an affidavit from the official of the Trinity House is usually admitted in evidence. Strictly speaking, the officer of the Trinity House should produce the copy (see The Maria das Doves, Br. & L. 27). The log is not evidence for the person who produces it ; and, even if purporting to be made by the first mate,, cannot be produced in evidence if he has died since the collision; and the same rule applies to depositions of a master made before a receiver of wreck (The Henry Coxon, L. D. 3 P. D. 156 ; 47 L. J. Ad. D. 83). There is an im- portant distinction to be kept in view between declara- tions by a master and declarations by the officers and crew, since the former are evidence against the owners as being made by their agent, while the latter are inadmissible {The Aciwon, 1 Spk. 176 ; The Manchester, 2 W. Rob. 62). The admission of a pilot is also inadmissible (The Lord Seaion, 9 Jur. 603 ; 2 W. Rob. 291), unless it is part of the res gestcB {The Schnvalhe, Swa. 521). q 226 THE PRACTICE OF THE COURT. Enforcing attendance of witneas. Cofits. Svidence on affi- davit. Examina- tion of witnesseB before officer of court or other person. The attendance of witnesses and the production of documents, &c., is enforced by the usual writs of suJb- pcsna ad testificandum and aubjxjencL duces tecum (see 3 & 4 Vict. c. 65, 8. 9). By A. C. Act, 1861, s. 21, service in any part of Great Britain and Ireland of either of these writs issued under the seal of the Court of Admiralty was as effectual as if the same had been served in England or Wales : this would apply to the Admiralty Division. The writ is issued from the registry. The costs of material witnesses, who, though in attend- ance at the hearing, have not been called, are allowed (27ie Biddick 38 L. J. Ad. 24; 19 L. T. N. S. 705), but not those of a receiver of wreck, when certified copies of the statements made before him would have answered all purposes {The Cromwell, L. R 3 Ad. 316). 2. Upon any motion, petition, or summons, evidence may be given by affidavit ; but the Court or a judge may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit 3. Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of ever}*^ affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same. The principles of evidence stated in this rule must be strictly adhered to. As to filing, see next page. 4. The Court or a judge may, in a cause or matter where it shall appear necessary for the purposes of justice, make any order for the examination upon oath before any officer of the Court, or any other person or persons, and at any place, of any witness or person, and may order any deposition so taken to be filed in the Court, and may empower any party to any such cause or matter to give such depo- sition in evidence therein on such terms, if any, as the Court or a judge may direct. Proceedings under this rule are still also regulated by rules 88—95 of A. C. R, 1859. See Appendix III. p. 389. The following rules were added in April, 1880 : — EVIDENCE GENERALLY. 227 3a. Every affidavit shall be drawn up in the first person, and shall Form of be divided into paragraphs, and every paragraph shall be numbered *™davit«. consecutively, and as nearly as may be shall be confined to a distinct portion of the subject Every affidavit shall be written or printed book wise. No costs shall be allowed for any affidavit or part of an affidavit substantially departing from this rule. 3b. Every affidavit shall state the description and true place of Descrip- abode of the deponent **?? ^^^ , 3c. In every affidavit made by two or more deponents the names deponent of the several persons making the affidavit shall be inserted in the to be jurat, except that if the affidavit of all the deponents is taken at one ***^d. time by the same officer it shall be sufficient to state that it was^?*^ sworn by both (or all) of the " above-named " deponents. two or 3d. Every affidavit shall be filed in the Central Office. There "oore shall be appended to every affidavit a note showing on whose behalf ^®^"®™- ... oi J .Affidavit 1* ^3 fi»«^- to be filed. 3e. No affidavit having in the jurat or body thereof any inter- Altera- lineations, alteration, or erasure shall, without leave of the Court or tions in a Judge, be read or made use of in any matter depending in Court ^ffida^its. unless the interlineation or alteration (other than by erasure) is authenticated by the initials of the officer taking the affidavit, or, if taken at the Central Office, either by his initials or by the stamp of that office, nor in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure' are re-written and signed or initialled in the margin of the k affidavit by the officer taking it. 3f. Where an affidavit is sworn by any person who appears to the Affidavits officer taking the affidavit to be illiterate, the officer shall certify in by illite- the jurat that the affidavit was read in his presence to the deponent, sons, that the deponent seemed perfectly to understand it, and that the deponent made his or her signature in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court or a Judge is otherwise satisfied that the affidavit was read over to and apparently perfectly understood by the deponent. 3g. In cases in which by the present practice an original affidavit Stamping is allowed to be used, it shall before it is used be stamped with a <^f *™da- vits and proper filing stamp, and shall at the time when it is used be de- ^^ of livered to and left with the proper officer in Court or in Chambers, office who shall send it to the Central Office. An office copy of an affi- ^P*®^* davit may in all cases be used, the original affidavit having been previously filed in the Central Office, and the copy duly authenti- cated with the seal of that office. Q2 228 THE PRACTICE OF TM COURT. ORDER XXXVIII. EVIDENCE BY AFFIDAVIT. Evidence 1. Within fourteen days after a consent for taking evidence by ^ ^' affidavit as between the plaintiff and the defendant has been given, or within such time as the parties may agree upon or a judge in chambers may allow, the plaintiff shall file his affidavits, and deliver to the defendant or his solicitor a list thereof. Time. 2. The defendant, within fourteen days after delivery of such list, or within such time as the parties may agree upon or a judge in chambers may allow, shall file his affidavits, and deliver to the plaintiff or his solicitor a list thereo£ 3. Within seven days after the expiration of the said fourteen days or such other time aa aforesaid, the plaintiff shall file his affidavits in reply, which affidavits shall be confined to matters strictly in reply, and shall deliver to the defendant or his solicitor a list thereol Cro68-ez- 4. When the evidence is taken by affidavit, any party desiring to amination. cross-examine a deponent who hajB made an affidavit filed on behalf of the opposite party, may serve upon the party by whom such affidavit has been filed, a notice in writing requiring the production *of the deponent for cross-examination before the Court at the trial, such notice to be served at any time before the expiration of fourteen days next after the end of the time allowed for filing affidavits in reply, or within such time as in any case the Ck)urt or a judge may specially appoint : and, unless such deponent is produced accoidingly, his affidavit shall not be used as evidence, unless by the special leave of the Court The party producing such deponent for cross-exami- nation shall not be entitled to demand the expenses thereof in the first instance from the party requiring such production. 5. The party to whom such notice as is mentioned in the last pre- ceding rule is given, shall be entitled to compel the attendance of the deponent for cross-examination, in the same way as he might compel the attendance of a witness to be examined. Printing 6. When the evidence in any action is, under this order, taken by evidence, affidavit, such evidence shall be printed ; and the notice of trial shall be given at the same time or times after the close of the evidence as in other cases is by these rules provided, after the doee of the pleadings. The filing mentioned in r. 1 ifi at the registry. MOTION FOR JUDGMENT. 229 ORDER XL. MOTION FOR JUDGMENT. I. Except where bj the Act or by theee rules it is provided that Motion jadgment may be obtained in any other manner, the judgment of the ^^^ J^^' Court shall be obtained by motion for judgment. See remarks to O. xiii. (r. 10), and O. xxix. . This rule, except, possibly, under the orders here referred to, has but little application to proceedings in the Admiralty Division. 9. No action shall, except by leave of the Court or a judge, be set Time for down on motion for judgment after the expiration of one year from ^^^^S the time when the party seeking to set down the same first became entitled so to do. 10. Upon a motion for judgment, or for a new trial, the Court may, if satisfied that it has before it all the materials necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, give judgment accordingly, or may, if it shall be of opinion that if has not sufficient materials before it to euable it to give judgment, direct the motion to stand over for further considera- tion, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made as it may think fit. II. Any party to an action may, at any stage thereol^ ^PP^y to the Order on Court or a judge for such order as he may, upon any admissions of admisaion fact in the pleadings, be entitled to, without waiting for the deter- mination of any other question between the parties. The foregoing rules of this order shall not apply to such applications; but any such application may be made by motion, so soon as the right of the party applying to the relief claimed has appeared from the pleadings. The Court or a judge may, on any such application, give such relief, sub- ject to such terms, if any, as such Court or judge may think ht. The exercise of the power vested in the judge by this last rule is wholly in his discretion (Mellor v. Sidebottom, L. R 5 Ch. D. 342 ; 46 L. J. Ch. 398 ; and for examples of the working of this rule see Turquand v. Wilson, L. R. 1 Ch. D. 85 ; 45 L. J. Ch. 103 ; and Martin v. Gale, 36 L. T. N. S. 357). This rule might be found useful in actions of 230 THE PRACTICE OF THE COURT. possession, in suits between co-owners, and in actions as to mortgages. ORDER XLL ENTRY OF JUDGMENT. Entry of 1. Every judgment shall be enterei by the proper officer in the judgment, book to he kept for that purpose. The party entering the judgment shall deliver to the officer a copy of the whole of the pleadings in the action other than any petition or summons ; such copy shall be in print, except such parts (if any) of the pleadings as are by these rules permitted to he written : Provided that no copy need be de- livered of any pleading a copy of which has heen delivered on enter- ing any previotis judgment in such action. The Forms in Appendix (D.) hereto may be used, with such variations as circumstances may require. Date. 2. Where any judgment is pronounced by the Court or a judge in Court, the entry of the judgment shall be dated as of the day on which such judgment is pronounced, and the judgment shall take effect from that date. 3. In all cases not within the last preceding rule, the entry of judg- ment shall be dated as of the day on which the requisite documents are left with the proper officer for the purpose of such entry, and the judgment shall take effect from that date. 4. Where under the Act or these rules or otherwise it is pro- vided that any judgment may be entered or signed upon the filing of any affidavit or production of any document, the officer shall examine the affidavit or document produced, and, if the same be regular and contain all that is hy law required, he shall enter judgment accord- ingly. 5. Where by the Act or these rules or otherwise any judgment may be entered pursuant to any order or certificate or return to any writ, the production of such order or certificate sealed with the seal of the Court, or of such return, shall be a sufficient authority to the officer to enter judgment accordingly. cree. The de- Judgment eo nomiifie is not entered in the Admiralty Division, but the decree of the judge is entered in a minute book. The last part of r. 1 of this order is, therefore, not applicable R. 3 would only apply in the very rare case ENTRt OF JUDGMENT. 231 of a judgment by default in an action in persana/m, when, it would seem, that the claim in the writ or statement of claim would take the place of the decree. In actions of salvage, wages, and necessaries, interest at Intereet the rate of 4 per cent, runs on the amount awarded, from the date of entering judgment ; and such amount is a judg- ment debt within 0. xlii., r. 14, since by s. 76, J. A. 1873, the statute 1 & 2 Vict. c. 110, s. 17, applies to Admiralty actions (The Jones Brothers, 37 L. T. N. S. 164 ; 3 Asp. M. C. N. S. 478). As to interest in damage and bottomry actions, see ante, Part I., Damage and Bottomry, pp. 57, 91. The following remarks describe the practice subsequent to the decree: — ^When judgment is pronounced for a claim Judgment in an action in rem where bail has not been given, the ^ ^^^ parties usually settle the matter out of Court, and consent where baU to a release of the res, otherwise it will be sold and the been proceeds paid by the marshal into the registry. If it is 8^^®"* necessary to sell the property, a commission for appraise- ment and sale must be obtained at the registry in pursu- ance of the decree. If the res has already been appraised a further appmisement is unnecessary ; and. as to official appraisement, see anie, O. v., r. 11, p. 153, and in that case a commission for sale only is required upon the filing of SaJe. the usual praecipe. The commission, with a praecipe for execution, must be left at the marshal's office. The following rules from A. C. R. 1859 are then applicable :-r- 124. Every commission for the appraisement or sale of property Sale by nnder the decree of the Court shall, unless the judge shall otherwise ^^^ order, be executed by the marshal or his substitutes. 125. The marshal shall pay into Court the gross proceeds of sale Payment of any property which shall have been sold by him, and shall at the ?^ procaeds same time bring into the registry the account of sale, with vouchers in support thereof, for taxation by the registrar. 126. Any person interested in the proceeds may be heard before Objection the registrar on the taxation of the marshal's account of expenses, to mar- 232 THE PRACTICE OF THE COURT. shal's and an objectioii to the taxation shall be heard in the aame manner as expenses. ^^ objection to the taxation of a solicitor's bill of costs. The marshal fixes the time and place of sale, which is duly made known by advertisement ; and at such time as announced the property is sold by auction. But, if it is to the interest of the parties concerned, the marshal may sell the res by private contract. If at the auction the biddings do not reach the appraised value, the property cannot be sold, but an order must be obtained from the judge for leave to sell it for a smaller sum. On the production of a bill of sale by the marshal, and an office copy of the order of the Court, the purchaser will obtain a new register of the ship and a perfect title to the property, whilst any one who may have claims against it must enforce them against the proceeds in the I'egistry.^ Where one party obtains the sale of a vessel, which is for the benefit of several claimants, the costs of such sale are the first charge on the proceeds {The Panthea, 25 L. T. N. S. 389 ; 1 Mar. L. C. N. S. 133). Where bail Where bail has been given, if the amount for which the gWen. ^ decree is made is not paid, together with the taxed costs, into the registiy, the plaintiff must obtain an order from the judge, ordering the defendant and his sureties to pay the amount by a certain day. If this is not done, the plaintiff should sue out a writ of execution in the shape of a,Ji. fa,, under O. xlii, r. 15, or for a writ of attachment under O. xlii. and O. xliv. For the procedure as to these writs, see the above Orders. Where the property has not been arrested nor bail given, the procedure will be the same as in the last mentioned case, except that there are no sureties to proceed against If a reference has been ordered, proceedings to enforce payment cannot be taken until the report is filed. ^ Proceeds in the registry cannot be attached by prooefls oat earing the like seal of the Court ; and a writ of execution so renewed shall have effect and be entitled to priority according to the time of the original delivery thereof. 17. The production of a wni of execution, or of the notice renewing the same, purporting to be marked with such seal as in the last pre- ceding rule mentioned showing the same to have been renewed, shall be sufficient evidence of its having been no renewed. 18. As between the original parties to a judgment, execution may issue at any time within six years from the recovery of the judgment, 19. Where six years have elapsed since the judgment, or any change has taken place by death or otherwise in the parties entitled or liable to execution, the party alleging hiniself to be entitled to execution may apply to the Court or a judge for leave to issue execution acconlingly. And such Court or judge may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in an action may be tried. And in either case such Court or judge may impose such terms, as to costs or otherwise, as shall seem just Orders 20. Every order of the Court or a judge, whether in an action, equivalent (^^9^^ or matter, may be enforced in the same manner as a judgment ment. ^ ^^ same effect. 21. In cases other than those mentioned in rule 18, any person not being a party in an action who obtains any order, or in whose favour any order is made, shall be entitled to enforce obedience to such order by the same process as if he were a party to the action ; and any person not being a party in an action against whom obedience to any judgment or order may be enforced, shall be liable to the same process for enforcing obedience to such judgment or order as if he were a party to the action. Relief £2. No proceeding by audita querela shall hereafter be used ; but execution. ^^^ P*'^ against whom judgment has been given may apply to the Court or a judge for a stay of execution or other relief against such judgment, upon the ground of facts which have arisen too late to be pleaded ; and the Court or judge may give such relief and upon such terms as may be just. EXECtJTION. 239 S3. Nothing in any of the niles of this order shall take away or Saving curtail any right heretofore existing to enforce or give effect to any ™ ®*' judgment or order in any manner or against any person or property whatsoever. 24. Nothing in this order shall affect the order in which writs of execution may be issued. If a person against whom judgment has gone has the Proceed- means to pay and will not do so, the Debtors Act, 1869, Debtore ^^ 32 & 33 Vict. c. 62, is applicable. ^«^ ^869. The following rules were, on March, 1874, made for the purposes of carrying out the provisions of this Act : — L All applications to commit to prison under the Debtors Act, 1869, shall, in the first instance, be made to the judge in Court by notice of motion, which shall specify the date and other particulars of the order in respect of the non- obedience to which the application is made, and shall specify the amount due, and be indorsed with the name and address of the solicitor or party suing out the notice of motion; and, when the solicitor actually suing out such notice of motion sues out the same as agent for a solicitor in the country, the name and address of such solicitor in the country shall be indorsed on the notice of motion. IJ. The service of the notice of motion shall, whenever it may be practicable, be personal on the debtor ; but, if it appears to the judge that reasonable efforts have been made to effect personal service, and either that the notice of motion has come to the knowledge of the debtor, or that he wilfully evades service, an order may be made as if personal service had been effected, upon such terms as to the judge may seem fit. III. Proof of the means of the debtor shall, whenever practicable, be given by affidavit ; but, if it appear to the judge, either before or at the hearing, that a vivd voce examination either of the debtor or of any other person or the production of any document is expedient or necessary, an order may be made commanding the attendance of any 240 THE PJRACTICE OF THE COURT. such person before the judge, at a time and place to be therein mentioned, for the purpose of being examined on oath touching the matter in question, and an order may be made commanding the production of such documents. The disobedience to any such order shall be deemed a contempt of Court, and be punishable accordingly. IV. The order of committal may be in the form or to the effect stated in Schedule A. annexed to these rules, and shall, before delivery to the marshal, be indorsed with the particulars required by r. 1. V. Upon payment of the sum or sums mentioned in the order (including the fees due to the marshal), the debtor shall be entitled to a certificate in the form of Schedule B. annexed to these rules, signed by the solicitor or party actually suing out the order, and attested before an attorney or justice of the peace. VI. The marshal or his subordinate shall, within two days of the arrest, indorse on the order the true date of such arrest Form of Order of Committal. Upon hearing, &c. [name and mmame of debtor and party claiming], I do order that the said A. B. be, for default of payment of the debt hereinafter mentioned, committed to [name of prison] prison for the term of weeks from the date of his arrest, including the day of such date, or until he shall pay £ , being the amount of [state particulars of debt or liabiliti/}f and which the said A. B. was, on the day of , ordered by the Admiralty Division of the High Court of Justice to pay to the said , together with £ for costs of and attending this order ; and I do order that the marshal or his substitute do take the said A B. for the purpose aforesaid. Dated (Signed) Judge. Form of Certificate of Payment, I certify that A. B., now in the gaol of , upon an order ATTACHMENT. 241 of the Admiralty Division of the High Court of Justice, at the instance of C. D. for non-payment of a deht of £ , has satisfied the said deht, together with the costs mentioned in the said order. Dated (Signed) Witness ORDER XLIIL WRITS OF FIERI FACIAS AND ELEGIT. 1. Writs of fieri facicu and of elegit shall have the same force and Writs of effect as the like writs have heretofore had, and shall he executed /• /"•» *^ in the same manner in which the like writs have heretofore heen executed. 2. Writs of ffendUiwui exponcUy distringas nuper vice eomiUm, fieri facioi de bonis eedssicutieisy sequestrari facias de hofiis eccUsiaS' ticiSj and all other write in aid of a writ of fi>eri facias or of elegit, may he issued and executed in the same eases and in the same manner aa heretofore. ORDER XLIV. ATTACHMENT. 1. A writ of attachment shall have the same effect as a writ of Attach- attachment issued out of the Court of Chancery has heretofore °^^^ had. 2. No writ of attachment shall he issued without the leave of the Court i»r a judge, to he applied for on notice to the party against whom the attachment is to be issued. Costs of moving for an attachment are in the discretion of the Court under O. Iv. (Abud v. Riches, L. R. 2 Ch. D. 528 ; 45 L. J. Ch. 649). / / / / R 242 THE PRACTICE OF THE COURT. ORDER XLV. ATTACHMENT OF DEBTS. Attach- 1. Where a judgment is for the recoveiy by or payment to any debts. peraon of money, the party entitled to enforce it may apply to the Court or a judge for an order that the judgment debtor be orally examined as to whether any and what debts are owing to him, before an officer of the Court, or such other peraon as the Court or judge shall appoint ; and the Court or judge may make an order for the examination of such judgment debtor, and for the production of any books or documents. 2. The Court or a judge may, upon the ex parU applicatioa of such judgment creditor, either before or after such oral examination, and upon affidavit by himself or his solicitorstating that judgment has been recovered, and that it is still unsatisfied, and to what amount, and that any other person is indebted to the judgment debtor, and is within the jurisdiction, order that all debts owing or accruing from Buch third person (hereinafter called the garnishee) to the judgment debtor shall be attached to answer the judgment debt ; and, by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court or a judge or an officer of the Court, as such Court or judge shall appoint, to show cause why he should not pay the judgment creditor the debt due from him to thd judgment debtor, or so much thereof as may be sufficient to satisfy the judg- ment debt. This procedure has long been in use in the Common Law Divisions : for decisions thereon, see Day's Common Law Procedure Acts, 4th ed., p. 314, et aeq, 3. Service of an order that debts due or accruing to the judgment debtor shall be attached, or notice thereof to the garnishee, in such manner as the Court or judge shall direct, shall bind such debts in his hands. 4. If the garnishee does not forthwith pay into Court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, and does not dispute the debt due or claimed to be due from him to the judgment debtor, or if he does not appear upon summons, then the Court or judge may order execution to issue, and it may issue accordingly, without any previous writ or process, to ATTACHMENT OF DEBTS. 243 levy the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the judgment debt 5. If the garnishee disputes his liability, the Court or judge, instead of making an order that execution shall issue, may order that an issue or question necessary for determining his liability be tried or determined in any manner in which any iBSue or question in an action may be tried or determined. 6. Whenever in proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the Court or judge may order such third person to appear and state the nature and particulars of hia claim upon such debt 7. After hearing the allegations of such third person under such order, and of any person whom by the same or any subsequent order the Court or judge may order to appear, or in case of such third person not appearing when ordered, the Court or judge may order execution to issue to levy the amount due from such garnishee, or any issue or question to be tried or determined according to the preceding rules of this order, and may bar the claim of such third person, or make such other order as such Court or judge shall think fit, upon such terms, in all cases, with respect to the lien or charge (if any) of such third person and to costs as the Court or judge shall think just and reasonable. See Day's Common Law Procedure Acts, 4tfa ed., p. 371 ; and see ante, p. 233, n. 8. Payment made by or execution levied upon the garnishee under any such proceeding as aforesaid, shall be a valid discharge to him as against the judgment debtor, to the amount paid or levied, although such proceeding may be set aside or the judgment reversed. 9. There shall be kept by the proper officer a debt attachment book, and in such book entries shall be made of the attachment and proceedings thereon, with names, dates, and statements of the amount recovered, and otherwise ; and copies of any entries made therein may be taken by any person upon application to the proper officer. 10. The costs of any application for an attachment of debt<(, and of any proceedings arising from or incidental to such application, shall be in the discretion ot the Court or a judge. R 2 ?** THE PRACTICE OF THE COURT. ORDER XLVI. CHARGING OF STOCK OR SHARES, AND DISTRINGAS. Chaigmg 1, An order charging stock or shares may be made by any Divisional Court or by any judge, and the proceedings for obtaining such order shall be such as are directed, and the effect shall be such as is provided by 1 & 2 Vict c 110, ss. 14 and 15, and 3 & 4 Vict c. 82, s. 1. See Tn Be The Blakely Ordnance Co., 35 L. T. N. S. 617; 25 W. R. 111. 2a. Order XLVI., r. 2, is hereby annulled, and no writ of dutrinffas shall hereafter be issued tmder the Act 5 Vict c 5, s. 5 (Rule 21, April, 1880). For further rules see Lely & Foulkes' Judicature Acts. ORDER XLVIL WRIT OF SEQUESTRATION. Writ of 1. Where any person is by any judgment directed to pay money into ^^ ' Court or to do any other act in a limited time, and after due service of such judgment refuses or neglects to obey the same according to the exigency thereof, the person prosecuting such judgment shall, at the expiration of the time limited for the performance thereof, be entitled, without obtaining any order for that purpose, to issue a writ of sequestration against the estate and effects of such disobedient person. Such writ of sequestration shall have the same effect as a writ of sequestration in Chancery has heretofore had, and the pro- ceeds of such sequestration may be dealt with in the same manner as the proceeds of writs of sequestration have heretofore been dealt with by the Court of Chancery. See Daniel's Chancery Practice, p. 892 ; and The Aus- tralia, Swa. 480, as an example of the practice. 2. No svhpana for the payment of costs, and, unless by the leave of the Court or a judge, no sequestration to enforce such payment, shall be issued. CHANGE OF PARTIES BY DEATH, &C. 245 ORDER XLIX. WRIT OF DELIVERY. A writ for delivery of any property other than land or mone^ Writ of may be iasned and enforced in the man tier heretofore in use in actions deliveiy, of detinue in the Superior Courts of Common Law. Such a writ might be employed to enforce a judgment for a plaintiff in an action of possession. ORDER L. CHANGE OF PARTIES BY DEATH, &;C. 1. An action shall not become abated by reason of the marriage, Marriage, death, or bankruptcy of any of the parties, if the cause of action sup- ^**^» ^^ vive or continue, and shall not become defective by the assignment, rup^ gf cn;ation, or devolution of any estate or title pendente lite, parties. 2. In case of the marriage, death, or bankruptcy, or devolution of estate by operation of law, of any party to an action, the Court or a judge may, if it be deemed necessary for the complete settlement of all the questions involved in the action, order that the husband, per- sonal representative, trustee, or other successor in interest, if any, of such party be made a party to the action, or be served with notice thereof in such manner and form as hereinafter prescribed, and on such terms as the Court or judge shall think just, and shall make such order for the disposal of the action as may be just. 3. In case of an assignment, creation, or devolution of any estate Assign- or title pendente lite^ the action may be continued by or against the ™®^* ®' person to or upon whom such estate or title has come or devolved. 4. Where by reason of marriage, death, or bankruptcy, or any New other event occurring after the commencement of an action, and P^'tifs to, causing a change or transmission of interest or- liability, or by reason 4*"^^* of any person interested coming into existence after the commence- ment of the action, it becomes necessary or desirable that any person not already a party to the aotion should be made a party thereto, or that any person already a party thereto should be made a party thereto in another capacity, an order that the proceedings in the action shall be carried on between the continuing parties to the 246 THE PRACTICE OF THE COURT. action, and such new party or parties, may be obtained ex parte on application to the Court or a judge, upon an allegation of such change or transmission of interest or liability, or of such person interested having come into existence. 6. An order so obtained shall, unless the Court or judge shall otherwise direct, be served upon the continuing party or parties to the action, or their solicit(»B, and also upon each such new party, unless the person making the application be himself the only new party, and the order shall from the time of such service, subject nevertheless to the next two following rules, be binding on the per- sons served therewith ; and every person served therewith who is not already a party to the action shall be bound to enter an appearance thereto within the same time and in the same manner as if he had been served with a writ of summons. 6. Where any person who is under no disability, or under no dis- ability other than coverture, or, being under any disability other than coverture, but having a guardian ad litem in the action, shall be served with such order, such person may apply to the Court or a judge to discharge or vary such order at any time within twelve days from the service thereof. 7. Where any pei-son being under any disability other than cover- ture, and not having had a guardian ad litem appointed in the action, is served with any such order, such person may apply to the Court or a judge to dbcharge or vary such order at any time within twelve days from the appointment of a guardian or guardians ad litem for such party, and until such period of twelve days shall have expired such order shall have no force or effect as against such last- mentioned person. ORDER LL TRANSFERS AND CONSOLIDATION. Transfer ' 1. Any action or addons may be transferred from one division to of actions, another of the High Court, or from one judge to another of the Chancery Division, by an order of the Lord Chancellor, provided that no transfer shall be made from or to any division without the consent of the president of the division. 2. Any action may, at any stage, be transferred from one division to another by an order made by the Court or any judge of the divi- sion to which the action is assigned : provided that no such transfer TRANSFEBS AND CONSOLIDATION. 247 shall be made without the consent of the president of the division to which the action is proposed to be transferred. See Humphreys v, Edwaxds, 45 L. J. Ch. 112; and Hawkins v. Morgan, 49 L. J. Q. B. 618, where an action for personal injuries was transferred to the Admiralty Division, as the defendants in the common law action had obtained a decree limiting their liability in an Admiralty action ; and The SeaJiam, 48 L. J. Ad. 28 ; 4 Mar. L. C. N. S. 58, where an action was improperly begun in the Admiralty Division. See J. A. 1873, s. 36. 2a. When an order has been made by any jndge of the Chancery Transfer Division for the winding ap of any company nnder the Companies ^^^ Acts, 1862 and 1869, or for the administration of the assets of any ^p ^f testiitor or intestate, the jud^ in whose Conrt snch winding up or company administration shall be pending shall have power, without any further consent, to order the transfer to such judge of any action pending in any other division brought or continued by or against such com- pany, or by or against the executors or administrators of the testator or intestate whose assets are being so administered, as the case may be. 3. Any action transferred to the Chancery Division or the Probate to Chan-^ Division shall, by the order directing the transfer, be directed to be *^ ^*^' assigned to one of the judges of such division to be named in the order. 4. Actions in any division or divisions may be consolidated by Consolida- oider of the Court or a judge in the manner heretofore in use in the ^^°* Superior Courts of Common Law. Rule 4 formulates what has long been the practice in Admiralty actions, — to consolidate them for the purpose of securing defendants from the payment of the larger costs which would ensue if the several actions were separately prosecuted. But, to afford ground for such consolidation, the actions must depend on precisely the same facts, though, as regards salvage actions, the Court has a somewhat wider power (The William Hutt, Lush. 25). Lately, if either of the plaintiffs object, the Court has been less willing to make an order for consolidation; but, if the objection is unreasonable, the party refusing will either be condemned in costs at the hearing or not receive them {The Jacob Land- 248 THE PRACTICE OF THE COURT/ Strom, L. R 4 P. D. 191 ; 4 Asp. M. C. N. S. 58) : and for an example of a plaintiff receiving no costs (The Longford, L. R 6 P. D. 60 ; 50 L. J. Ad. 28). The Court, after having consolidated, can sever the actions if necessary {Hie William Hwtt, ante), and such consolidation may take place either on the application of the plaintiffs or defen- dants {TIhe Melpomene, L R 4 Ad. 129 ; 29 L. T. N. S. 405). An order for consolidation will be made on summons by the registrar. It is usual to give the conduct of the action to the plaintiff in one of the actions, with leave to the other plaintiff to deliver a separate statement of claim, and to appear at the hearing by one counsel, without prejudice to any order which the Court may make at the hearing as to the costs of such separate claim and counsel. It is usual to apply to the Court by motion to dissever con- solidated actions. ORDER LII. IKTERLOCUTOKY ORDERS AS TO MANDAMUS, INJUNCTIONS, OR INTERIM PRESERVATION OF PROPERTY, &C. Orders for 1.* When by any contract a prima fade case of liability is established, preserva- j^^^j there is alleged as matter of defence a right to be relieved wholly property, or partially from such liability, the Court or a judge may make an order for the preservation or interim custody of the subject-matter of the litigation, or may order that the amount in dispute be brought into Court or otherwise secured. by sale, ^ -^^ fSi^BXL be lawful for the Court or a judge, on the application &C. of any party to any action, to make any order for the sale, by any person or persons named in such order, and in such manner and on such terms as to the Court or judge may seem desirable, of any goods, W3U?es, or merchandise which may be of a perishable nature or likely to injure from keeping, or which for any other just and sufficient reason it may be desirable to have sold at once. 3. It shall be lawful for the Court or a judge, upon the applica- tion of any party to an action, and upon such terms as may seem just, to make any order for the detention, preservation, or inspection INTERLOCUTORY ORDERS. 249 of any property being tbe subject of such action, and for all or any of the purposes aforesaid, to authorize any person or persons to enter upon or into any land or building in the possession of any party to such action, and for all or any of the pui-poses aforesaid to authorize any samples to be taken or any observation to be made or experiment to be tried which may seem necessary or expedient for the purpose of obtaining full information or evidence.' 4. An application for an order under section 25, sub-section 8, of the Act, or under Rules 2 or 3 of this Order, may be made to the Court or a judge by any party. If the application be by the plaintiff for an order under the said sub-sectiim 8, it may be made either at parte or with notice, and -if for an order under the said Rules 2 or 3 of this Order, it may be made after notice to the defendant at any time after the issue of the writ o^ summons^ and, if it be by any other party, then on notice to the plaintiff, and at any time after appearance by the party making the application. 5. An application for an order under Rule 1 may be made by the plaintiff at any time after his right thereto appears from the plead- ings ; or, if there be no pleadings, is made to appear by affidavit o^ otherwise to the satisfaction of the Court or a judge. 6. Where an action is brought to recover, or a defendant in his statement of defence seeks by way of counter-claim to recover specific property other than land, and the party from whom such recovery is sought does not dispute the title of the party seeking to recover the same, but claims to retain the property by virtue of a lien or othf>rwise as security for any sum of money, the Court or a judge may, at any time after such last-mentioned claim appears from the pleadings, or, if there be no pleadingfs by affidavit or otherwise to the satisfaction of such Court or judge, order that the party claiming to recover the property be at liberty to pay into Court, to abide the event of the action, the amount of money in respect of which the lien or security is claimed, and such further sum (if any) for interest and costs as such Court or judge may direct, and that, upon such payment into Court being made, the property claimed be given up to the party claiming it. 8. No writ of injunction shall be issued. An injunction shall be by a judgment or order, and any such judgment or order shall have the effect which a writ of injunction previously had. R 1 is of little importance as to Admiralty matters ; Remarks it is really contained in r. 3. Section 25, sub-s.. 8, of the ord^ J. A., 1875, should be read with these rules. 250 THE PBACnCE OF THE COURT. For an example of a sale under r. 2, see The KaMeen (L. R. 4 Ad. 269 ; 31 L. T. N. S. 204), of a cargo from a derelict ship ; and for example of procedure under r. 3, see The Horlock (36 L. T. K S. 622 ; L. R 2 P. D. 243, 250), where a defendant was restrained from dealing with the shares in a ship, and the Registrar of Shipping from registering any transfer pendeTvte lite. If a vessel is sold against which several salvors are bringing actions, the salvor who first brings his action will generaUy be allowed to have the conduct of the sale. R 6 may be useful in some cases, as, where a ship is claimed by a mortgagor, and a mortgagee asserts that he has a lien on it. In some cases, where a ship or cargo is deteriorating in value, the Court, in analogy to these proceedings, has ordered it to be released on terms before it has been appraised {The Glasgow Packet, 8 Jur. 67). ORDER LIIL MOTIONS AND OTHER APPLICATIONS. Motions. Notice of motion. 1. Where by these rules any application is authorized to be made to the Court or a judge in an action, such application, if made to a judge in Court, shall be made by motion.^ 2. No rule or order to show cause shall be granted in any action, except in the cases in which an application for such rule or order is expressly authorized by these rules. 3. Except where by the practice existing at the time of the passing of the said Act any order or rule has heretofore been made ear parte absolute in the first instance, and except where by these rules it is otherwise provided, and except where the motion is for a rule to show cause only, no motion shall be made without previous notice to the parties affected thereby. But the Court or judge, if satisfied that the ^ By A. Gi R., 1859, r. 141, " No motion shaU be made to the judge in Court save by counsel, or by a party oondactlng his cause in person." MOTIONS AND OTHBR APPLICATIONS. 251 delay caused by proceeding in the ordinary way would or might entail irrep^irable or serious misuhiefy may make any order ex parte upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the Court or judge may think just ; and any party affected by such order may move to set it aside. It is impossible to state more definitely what is a matter which will entitle a party to move ex parte. If a party gives notice of motion and does not appear, and the opposite party is in attendance to show cause, the former will have to pay the costs of the appearance of the latter (Berry v. Exchange Co., 1 Q. B. D. 77 ; 45 L J. Q. B. 224). 4. Unless the Court or judge give special leave to the contrary, Time, there must be at least two clear days between the service of a notice of motion and the day named in the notice for hearing the motion. They must be two clear days (Daubney v. Shuttleworth, 1 Ex. D. 53 ; 45 L. J. Ex. 177). By leave in urgent cases short notice of motion is allowed. 5. If on the hearing of a motion or other application the Comt or Notice to judge shall be of opinion that any person to whom notice has not been P^on to given ought to have or to have had such notice, the Court or judge j^^ ^^^ may either dismiss the motion or application, or adjourn the hearing been thereof^ in order that such notice may be given, upon such terms, if S^^^i^ any, as the Court or judge may think fit to impose. 6. The hearing of any motion or application may from time to time Adjoum- be adjourned upon such terms, if any, as the Court or judge shall ment think fit. 7. The plaintiff shall, without any special leave, be at liberty to Service, serve any notice of motion or other notice, or any petition or summons, upon any defendant who, having been duly served with a writ of summons to appear in the action, has not appeared within the time limited for that purpose. 8. The plaintiff may, by leav^of the Court or a judge, to be obtained ex parte, serve any notice of motion upon any defendant along with the writ of summons, or at any time after service of the writ of summons and before the time limited for the appearance of such defendant. If a party appears to consent to a motion who would 252 THE PRACTICE OF THE COURT. not have been prejudiced by it, he will not be allowed his costs {TJie Achilla, 25 L. T. N. S. 605 ; 1 Mar. L. C. N. S. 165 ; The Albion, 6 L. T. 166). He should communicate the fact that he consents to the solicitor of the party who makes the motion ; and the counsel who moves will state this, if necessary, to the Court. If there are any particular terms upon which only a party will consent, it will be proper for him to appear by counsel on the motion. ORDER LIV. APPLICATION AT CHAMBERS. Summons 1. Every application at chambers authorized by these rules shall be m cham- made in a summary way by summons. This rule is absolute as to the procedure in chambers ; and the practice of moving in chambers is now obsolete. Every summons is prepared by the solicitor, and must be sealed in the registry. The following rules, A. C. R 1859, must be read in con- nection with this practice : — Rule 146. " If the solicitor summoned do not appear at the time named in the summons, the cause shall be called on, and the judge (or registrar) thereupon shall make such order as to him shall seem fit." Rule 147. " If the solicitor by whom the summons has been taken out do not appear to support the same at the time named in the summons, the judge may, on the appli- cation of the solicitor summoned, dismiss the summons with costs." Rule 149. " Either solicitor may employ counsel at the hearing of any summons before the judge in chambers if notice thereof has been given to the adverse solicitor two days before the hearing of the summons." No praecipe need be left at the registry when a summons is issued, but a duplicate summons is used in its place. APPLICATION AT CHAMBERS. 253 2. In the Admiralty Diyision, a regifltrar may transact all such Matters business and exercise all such authority and jurisdiction in respect of ^* y^^hin the same as under the Act, or the schedule thereto, or these rules, may diction of be transacted or exercised by a judge at chambers, except in respect the regis- of the following proceedings and matters ; that is to say, — *'"'• All matters relating to criminal proceedings or to the liberty of the subject : The removal of actions from one division or judge to another division or judge : The settlement of issues, except by consent : Discovery, whether of documents or otherwise, and inspection, except by consent : Appeals from district registrars : Interpleader other than such matters arising in interpleader as relate to practice only, except by consent : Prohibitions : Injunctions and other orders under sub-section 8 of section 25 of the Act, or under Order LIL, Rules 1, 2, and 3 respectively : Awarding of costs, other than the costs of any proceeding before such master : Reviewing taxation of costs : Charging orders on stock funds, annuities, or share of dividends or annual produce thereof. It follows from this rule that any other matter than those enumerated above may be brought before the registrar, for by J. A., 1873, section 39, the jurisdiction of the judge in chambers is almost unlimited. 2a. The authority and jurisdiction of the district registrar, or of a master of the Queen's Bench, Common Pleas, or Exchequer Divisions^ shall not extend to granting leave for service out of the jurisdiction of a writ of siunmons or notice of a writ of summons. 3. If any matter appears to the master proper for the decision of a judge, the master may refer the same to a judge, and the judge may fiither dispose of the matter or refer the same back to the master with such directions as he may think fit 4. Any person affected by any order or decision of a roaster (regis- Appeal trar) may appeal therefrom to a judgu at chambers. Such appeal ^^^ shall be by summons, within four days after the decision complained '^^ of, or such further time as may be allowed by a judge or master. 5. An appeal from a master's decision shall be no stay of pro- ceeding unless so oidered by a judge or master. 254 THE PRACTICE OF THE COURT. At the hearing of a summons before the judge, he will, if it raises a difficult point, sometimes adjourn it for hearing into Court Kule 4 seems to make the appeal and the judgment necessarily in chambers. Rule 6, as to appeal to Court by motion, applies only to the Common Law Divisions, and is not printed here. As to appeal from district registrar, see O. xxxv., r. 7. As to costs on summons, see App. II., Rules of Supreme Court (Costs), special allowances and general provisions. A certificate for counsel should be asked for. ORDER LV. COSTS. CostR. 1. Subject to the piovisioiis of the Act, the coflts of and incident to all proceedings in the High Court shall be In the discretion of the Court. 2. In any cause or matter, in which security for costsJs required, the security shall be of such amount, and be given at such time or times, and in such manner or form, as the Court or a judge shall direct Although, as above stated, costs are in the discretion of the Court, there are certain rules defined with more or less precision by which the Court is ordinarily governed in the exercise of its discretion. Salvage. In salvage actions costs usually follow the event {The Lady Egidia, Lush. 513; The Edvxird Hawkins, ib. 515 ; 15 Moo. P. C. 586) ; but under special circumstances unsuccessful plaintiffs have been allowed all or some part of their costs, as, for the purpose of encouraging mariners to rescue property {The India, 1 W. Rob. 406 ; The Princess Alice, 3 W. Rob. 143) ; or, though unsuccessful, have not been condemned in costs, as, when they were summoned COSTS. 255 by an ambiguous signal {The LitUe-Joe, Lush. 88), or when there were some meritorious acts on their part (The Martha, Swa. 489). Again, no order is sometimes made as to costs when a plaintiff is unsuccessful by a suit being dismissed for want of jurisdiction {The WiUem III., L. R 3 Ad. 487 ; 25 L. T. N. S. 386) ; when an agreement for salvage has been set aside, but some reward given {The Medina, L. R 2 P. D. 5 ; The SUeaia, L. R 5 P. D. 177 ; 43 L. T. 319) ; when the contract of service is held to prevent a salvage reward {The Ganges, L. R. 2 Ad. 370 ; 38 L. J. Ad. 61). Salvors who have substantiated their claim are sometimes deprived of all or part of their costs in consequence of improper conduct, as, by denying the services of co-salvors {The Bartley, Swa. 198 ; The Glasgow Packet, 2 W. Bob. 306), or not doing all they might have done {The Sccmt, L. R 3 Ad. 612 ; 41 L. J. Ad. 42). To avoid difficulties as to apportionment where there are several sets of salvors, one sum nomine expensarv/m is given to them in place of costs {The Enterprise, 2 Hagg. 178, n. ; The Kathleen, 31 L. T. N. S. 204 (210) ) ; and in a case where the defendants were condemned to pay one set of costs in respect of two actions, they were ordered to be appor- tioned according to the amount of the bills of costs {The Pasithea, L. R. 5 P. D. 5). Out-port charges are to be made up in one bill with the general costs of the action {The City of Brusseh, L. R 4 Ad. 194 ; 42 L. J. Ad. 72). When an action is successfully brought against ship, freight, and cargo, the costs must be equally divided {The Marquis of Huntley, 3 Hagg. 246 ; The Peace, Swa. 115) ; but, if any party is improperly brought into the action, he will receive his costs (The Cargo ex Sarpedon, L. R 3 P. D. 28 ; 37 L. T. 505). Under 23 & 24 Vict. c. 127, and by general principles of Equity, a solicitor has a charge upon the property recovered or preserved through his instnimentality in priority to claims which accrue after the institution of 256 THE PRACTICE OF THE COUST. the suit {The PhUippine, L. R 1 Ad. 309 ; The Heini^dt, L. R. 3 Ad. 505 ; 41 L. J. AA 68). Towage. Costs in towage actions usually follow the event (The Robert Pow, Br. & L. 99 ; 32 L. J. Ad. 64) ; but circum- stances may arise, as, carelessness on the part of the towed and towing vessel, when each party will have to bear their own costs {The Energy, L. R 3 Ad. 48 ; 39 L J. Ad. 25). Damage. Costs in actions of damage, as a rule, follow the event ; thus, if damage is occasioned by the wrongful act of the ship complained of, the plaintiff will be entitled to costs; and again, if damage is entirely the result o( the negligence of the complaining ship, that vessel will be condenmed in costs {The AlbeH Edward, 44 L. J. Ad. 49 ; 24 W. R 179). Inevitable If the damage is caused by inevitable accident, the general practice is that each side must pay its own costs {The Mar^ peda, L. R 4 P. C. 21 2 ; The Buckhurst, L. R 6 P. D. 152) ; but, if the plaintiff has been unduly rash in bringing the action, and had good reason to think that the collision was the result of an accident, he will be ordered to pay the Both to costs {Tlie London, Br. & L. 82 ; 9 L. T. N. S. 348). Again, blame. •£ j^^^j^ parties are to blame, they must each pay their own costs {The Washington, 5 Jur. 1067 ; The Telegraph, 1 Spk. 427 ; The Lake St. Clair, 36 L. T. N. S. 155 (160)). But exceptional circumstances will produce exceptions to the above rules, such as, misconduct on the part of those who are successful or not to blame {The Celt, 3 Hagg. 328), or the novelty of the point decided by the judgment of the Compul- Court {The Dia/rva, Lush. 539 ; 82 L. J. Ad. 57). The rule ■ory pilot ^ ^Q ^g^ when the defence of compulsory pilotage is set up is that where this is the sole ground of defence, and the jdefeudants succeed upon it, they are entitled to their costs {Tlie Juno, L R 1 P. D. 135 ; 34 L. T. N. S. 741) ; but that, where other grounds are relied on in addition to that of compulsory pilotage, and the defence is successful on this point alone, then each party bears his own costs {The Mathew Cay, L R 5 P. D. 49 ; 49 L. J, Ad. 47 ; COSTS. 257 The Daoiz, 37 L. T. N. S. 137; 8 Mar. L C. N. S. 477; The Schvxm, L. R 4 Ad. 187 ; 30 L. T. N. S. 537) ; and this rule is followed in the Court of Appeal {The Daoiz, ante), but has been held not to apply to the other Divisions of the High Court (General Steam Navigation Co. v. London and Edinburgh Co., L. R. 2 Ex. D. 467) No order can be made against the Crown for the payment of costs, but as a matter of grace the Crown in practice abides by the usual rules {The Leda, 32 L. T. N. S. 58 ; Br. & L. 19). When, as is usual, the captain of the ship is the nominal defendant, costs are given as if he were an ordi- nary defendant {The Swallow, Lush. 32). In actions for damage to cargo, the costs, as a rule, follow Damage to the event {e.g., The Heinrich, L. R 3 Ad. 424 ; but, if an **^^' action is brought by the owner of cargo on one ship against another for damage by collision, and both are held to blame, no order will, as a rule, be made as to costs {Tfie City of MaTichester, L. R. 5 P. D. 221 ; 49 L. J. Ad. 81). In an action for limitation of liability the plaintiff Limitation usually has to pay the costs ; but, if the defendants raise *^ ^ ^• issues and fail upon them, the costs of such issues will have to be borne by them {The Emjnisa, L. R 5 R D. 6 ; 48 L. J. Ad. 36). When the claim is pronounced for, costs usually follow Wages, the event {The Minstrel, 2 Hagg. 40 ; The Limerick, L. R. 1 R D. 292; 45 L. J. Ad. 97); but circumstances may arise, such as, exorbitant claims, which will cause the plaintiff to be condemned in costs {The William, Lush. 199), or owners may be equally to blame, as, in striking an imreasonable amount off a claim, when each party must pay their own costs {The Lemuella, Lush. 147 ; 30 L. J. Ad. 1). Again, a master may be entitled to payment, yet his conduct may have fully justified a defence to the action, when each party will be ordered to pay their own costs {The Bodmck, 31 L. T. N. S. 274 ; 2 Mar. L. C. N. S. 387). If a master does not furnish accounts before bringing an s 200 THE PUACTICE OF THE COURT. desire the judgment below to be varied, and the appeal is dismissed, the respondents will have to pay any oosts occa- sioned by their notice [The Lauretta, L. R. 4 P. D. 25 ; 48 L. J. Ad. 55). If the Court of Appeal varies the decree of the Court below, as, by finding that the collision was the result of an inevitable accident, or that both ships were to blame, each party will have to bear his costs of the litigation in both Courts (The Milanese, 43 L. T. N. S. 107 ; The Cmnnna, 35 L. T. N. S. 781 ; 3 Mar. L. C. N. S. 307 ; The City of Cambridge, ib,). Security When the plaintiff resides out of the lurisdiction of the High Court, he may be required to give security for costs (The Sophie, 1 W. Rob. 326 ; The D. H. Peri, Lush. 543), although at the time of the application he Ls within the jurisdiction ; but this practice is generally con- fined in wages actions to those by a master {The Franz et Elise, Lush. 377; 5 L. T. N. S. 290; The ZufaU, 44 L. J. Ad. 16 ; 32 L. T. N. S. 571 ; The Don Ricardo, L. R 5 P. D. 121 ; 49 L. J. Ad. 28). And, where the defendant brings a counterclaim, he may be compelled, unless the ship is under arrest and is of sufficient value to cover the claim and costs, or sufficient bail has been given, to give security for the costs of the whole action, not only for the costs caused by such counterclaim (The Julia Fisher, L. R. 2 P. D. 115 ; 36 L. T. N. S. 259). The procedure by counterclaim having taken the place of cross actions in causes of damage, the practice as to security for costs formulated by A. C. Act, 1861, s. 34, in cases when the ship of the plaintiff had not been arrested, whereby the plain- tiff was obliged to give security, is applicable to cases of counterclaim (The Charkieh, L. R. 4 Ad. 120 ; 29 L. T. N. S. 404), and he must give security when called (The Julia Fisher, supra ; The Carnarvon Castle, 38 L. T. N. S. 736 ; 3 Asp. M. C. N. S. 607) ; but this does not apply to owners of cargo who may have joined with the owner of the ship as plaintiffs. And a defendant who claims a COSTS. 2t)l limitation of his liability by petition is, as regards security for costs, in the same position as an ordinary plaintiff {The Wild Ranger, Lush. 553; 5 L. T. N. S. 164). An order for security for costs will also be made in cases where the plaintiff may be within the jurisdiction, when there are some exceptional circumstances to justify such an order, as the recent insolvency of the claimant {The Lake Megantic, 36 L. T. N. S. 183 ; 3 Mar. L C. N. S. 382), for, in this matter the Admiralty Division acts upon principles long established in the Common Law Courts ; moreover, the rule as to foreigners has been applied to foreign Governments {The Beatrice, 36 L. J. Ad. 10). The amount of the security depends on the circum- stances of each particular case, as, the importance of the action, the character of the parties, and so forth. Thus, in an action for wages, when the plaintiffs are foreigners in England, it will be a moderate sum {The ZiifaUy ante). The application should be made as ^arly as possible in an action {The Volant, 1 W. Eob. 384) ; and proceedings will be stayed until such security as is ordered is given. If the order is not complied with within a reasonable time, the claim will be dismissed {The Julia Fialier, L. R. 2 P. D. 115; 36 L. T. N. S. 259). The money must be paid into the Bank of England, to the account of the registrar, upon a receivable order, which can be obtained at the registry, or, if bail is given, the practice as set out at p. 154 is applicable. The rule as to security is not applicable to damages for which security is not required {Tlie Mary or Alexand/ra, L. li. 1 Ad. 335 ; 16 L T. N. S. 98). As to giving bond, see R 3, p. 264. It may be convenient to notice here the practice as to In the secunty for costs in the Court of Appeal. By 0. IviiL, r. £p^J^' 15, security may be required under "special circumstances.'' The Court of Appeal has decided that there must be really unusual circumstances to induce them to grant the appli- cation, and that they will, as far as possible, follow the 262 THE PRACTICE OF THE COURT. practice of the Privy Council (The Victoria, L. R 1 P. D. 281 ; 34 L. T. N. S. 391). As to " unusual circumstances," see infra. Security was required by the Privy Council when the appellant resided out of the jurisdiction of the Court (Privy Council Rules, No. 15 ; Macpherson, P. C. Prac., 2nd ed. ; App., p. 121) : but the practice as to amount and time under this rule would not now be in force, since, by 0. Iviii., r. 15, these are in the discretion of the Court. The time in which security must be given would seem to be a reasonable one, otherwise the appeal will be dismissed on motion by the respondent (Polini v. Gray, L. R. 11 Ch. D. 741 ; 49 L. J. Ch. 41 ; Judd v. Green, L. R. 4 Ch. D. 784 ; 46 L. J. Ch. 257). When an appellant is clearly obliged to give security, he^ ought to do so upon being applied to, and a reasonable offer should be entertained by the respondent. If an application is made to the Court, it will consider which party has made the application necessary, and deal with the costs accord- ingly {The ConstaTitine, L. R. 4 P. D. 156 ; 24 W. R 747). In an appeal from a division other than Admiralty, poverty and voluminous evidence have been considered special circumstances (Wilson v. Smith, L. R 2 Ch. D. 67 ; 45 L. J. Ch. 692) ; in the Admiralty Division an appellant having been a bankrupt, and being at the time a liquidat- ing debtor {The Constantine, L R. 4 P. D. 156 ; 27 K R 747). Moreover, security must be only for future costs certain to be incurred, not for those which already exist or may possibly arise (Grant v. The Banque Franco-Egyp- tienne, L. R 1 C. P. D. 143 ; 34 L. T. N. S. 470; L. R 2 C. P. D. 430). As to time and mode of application, see 0. Iviii., r. 15. Costs in In actions within the County Court limits, unless the County*" judge makes an order to the contrary, the plaintiff will Courts* obtain his costa (see ante, p. 15). But, in such a case it is tion. usual for the defendant to apply for an order depriving the plaintiff of them, and the matter is then one wholly for the COSTS. 263 discretion of the judge. For examples of costs given before the Judicature Acts when a certificate was required, see The MinnehaJia, Lush 335 ; Tlie Fentx, Swa. 13 ; The Beaumaris Castle, 40 L. J. Ad. 41 ; 24 L. T. N. S. 448. It rests on the plaintiff to show some reason for proceeding in the High and not in an Inferior Court when he may do so. As regards the taxation of costs, the rules 119, 120, and Taxation 121, from A. C. R, 1859 (see post, App. III.), describe the ^ ^^ initial proceedings, after which they continue in the manner described in the Rules of the Supreme Court (Costs) ; see App. II. When costs have been taxed, an application for the usual order for payment may be made to the judge, and it, as part of the judgment, may bo enforced in the same way (see 0. xlii., et seq,). Costs bear interest from the signing of the allocatur, since 1 & 2 Vict. c. 110, s. 17, is, by J. A., 1876, s. 76, applicable to the Admiralty Division {The Jones BrotlierSy 37 L. T. N. S. 164 ; 3 Mar. L C. N. S. 478 ; see also Schroder u Clough, 46 L. J. C. R 365). Retainers, both to the leading and junior counsel, are usually allowed on taxation, and refreshers if a case takes more than one day {The Neaera, L. E. 5 P. D. 118 ; 42 L. T. N. S. 743). On a taxation of costs between solicitor and client, items rendered necessary by the negligence of the solicitor were allowed, on the ground that the negligence complained of would be cause for an action of negligence against the solicitor {The Pappa de Rossie, L R 3 P. D. 160). With regard to appeals against the taxation of bills of Appeals costs, see Rules of Supreme Court (Costs), rules 30 — 33, tSation. App. II. The judge is very reluctant to interfere with the discre- tion of the registrar in the matter of taxation, the guiding principle in which is, that the party who has been success- ful in the action shall be indemnified for all expenses 264 THE PRACTICE OF THE COUBT. Filing docu- ments. to which he has necessarily been put {The Karla, Br. A L. 367). 3. Wh<'re a bon^l is to be ^ven as security for coats, it ahallf onlesa the Conrt or a Judge otherwiae directF, be given to the party or person reqniriiig the security, and not to an officer of the Comt. ORDER LVL NOTICES AND PAPER, ETC. Notioea 1. All notices rec^uired by these rules shall be in writing, unless expressly authorised by a Court or judge to be given orally. The next three rules from A« C. R, 1S59, should be read with the above : — Service. 151. ^ The service of a notice by a solicitor may be eflfected by his clerk or agent, and if required to be verified shaU be verified by affidavit" 152. '^ Notices required to be left in the registry shall be signed by the solicitor, or his clerk for him." 153. ** Notices sent from the registry may be sent by post, and the day on which the notice is posted shaU be considered as the day of the service thereof, and the posting thereof shall be a suffideut aervice." 156. No document shall be filed, unless properly indorsed and stamped. 157. No document of which a copy is required to be served on the adverse solicitor shall be filed in the registiy without a certificate indorsed thereon, signed by the solicitor or by his clerk for him, to the effect that the document has been duly served. 159. If a solicitor, save by permission of the judge or registrar, do not file or serve on the adverse solicitor, as may be required of him any document within the time allowed by any of these rules, the adverse solicitor shall not be compelled to receive the same, save by order of the judge. Minuter. 160. On filing any instrument or docimient, the solicitor shall state, in writing, on a printed form to be obtained in the registry, called a minute, the nature of the instrument or document filed, and the date of the filing thereof. 161. A record of all minutes, and of all causes instituted and appearances entered, and of all decrees and orders of the Court, shall be entered in a book to be kept in the registry, called the ** Minute Book." TIME. 265 The cause book, Order V., R. 8, p. 109, has, for public purposes, superseded the minute book, which is now only used for the convenience of the officials of the registry. 180. Other pereons may inspect the Court books on payment of Searches, the proper fee. 181. No person, except a party or solicitor in the cause or a clerk of the latter, shall be allowed, save by permission of the judge, to inspect any of the documents in a pending cause. "Other," that is, than the parties and solicitors in a cause who are charged the fees for searches set out in the list of fees, see App. II. 3. Proceedings required to be printed shall be printed on cream Paper, wove machine drawing foolscap folio paper, 19 lbs. per mill ream, or thereabouts, in pica type leaded, with an inner margin about three quarters of an inch wide, and an outer margin about two inches and a half wide. 4. Any affidavit may be sworn to either in print or in manuscript, Affidavits, or partly in print and partly in manuscript See Rules of Supreme Court (Costs), Orders i., iii., v., App. II. ORDER LVII. TIME. 1. Where by these rules, or by any judgment or order given or Months, made after the conmiencement of the Act, time for doing any act or taking any proceeding is limited by months, not expressed to be lunar months, such time shall be computed by calendar months. 2. Where any limited time less than six days from or after any Days not date or event is appointed or allowed for doing any act or taking any rockoJ^ed. proceeding, Sunday, Christmas Day, and Good Friday shall not be reckoned in the computation of such limited time. 3. Where the time for doing any act or taking any proceeding SundajB. expires on a Sunday, or other day on which the offices are closed, and by reason thereof such act or proceeding cannot be done or taken on that day, such act or proceeding shall, so far as regards the lime of 266 THE PRACTICE OF THE COURT. Long vacation. Enlarging and abridging times. Motion to fix early day for trial doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next be open. 4. No pleadings shall be amended or delivered in the long vacation, unless directed by a Court or a judge. 5. The time of the long vacation shall not be reckoned in the com- putation of the times appointed or allowed by these rules for filing, amending, or delivering any pleading, unless otherwise directed by a Court or a judge. 6. A Court or a judge shall have power to enlaige or abridge the time appointed by these rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such tenns (if any) as the justice of the case may require, and any such enlaigement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed. 6a. The time of delivering or amending any pleading may be enlarged by consent in writing, without application to the Court or a judge. 7. In Admiralty actions the Court or a judge shall have power at any stage of the proceedings in such action, upon a motion or summons by either party, calling upon the other party to show cause why the trial of such action should not take place on an early day to be appointed by the Court or a judge, to appoint that such trial shall take place on any day or within any time which to the Court or judge shall seem fit ; and for such purpose the Court or judge shall have power, upon such, motion or summons, to dispense with the giving of notice of trial, or to abridge the time or times appointed by these rules for giving such notice, for the delivery of pleadings, or for doing any other act or taking any other proceeding in the action, upon such terms (if any) as the nature of the case may require. ORDER LVm. APPEALS. Appeals. 2. All appeals to the Court of Appeal shall l)e by way of re* hearing, and shall be brought by notice of motion in a summaiy way, and no petition, case, or other formal proceeding other than such notice of motion shall be necessary. The appellant may by the notice of motion appeal from the whole or any part of any judgment or order, and the notice of motion shall state whether the APPEALS. 267 whole or part only of such judgment or order is complained of, and in the latter case sball specify such part 3. The notice of appeal shall be served upon all parties directly Notice of affected by the appeal, and it shall not be necessary to serve parties •??***• not so aifected ; but the Court of Appeal may direct notice of the appeal to be served on all or any parties to the action or other pro- ceeding, or upon any person not a party, and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may seem just, and. may give such judgment and make such order as might have been given or made if the persons served with such notice had been originally parties. Any notice of appeal may be amended at any time as to the Court of Appeal may seem fit. 4. Notice of appeal from any judgment, whether final or interlo- cutory, shall be a fourteen days' notice, and notice of appeal from any interlocutory order shall be a four days' notice. 5. The Court of Appeal shall have all the powers and duties as to Amend- amendment and otherwise of the Court of First Instance, together ?^ **^ with full discretionary power to receive further evidence upon evidence, questions of fact, such evidence to be either by oral examination in Court, by affidavit, or by deposition taken before an examiner or conmussioner. Such further evidence may be given without special leave upon interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon appeals from a judgment after trial or hearing of any cause or matter upon the merits, such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Court The Court of Appeal shall have power to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require. The powers aforesaid may be exercised by the said Court, notwithstanding that the notice of appeal may be that part only of the decision may be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision. The Court of Appeal shall have power to make such order as to the whole or any part of the costs of the appeal as may seem just. The Court of Appeal will rarely allow the admission AdmiasiGn of further evidence unless very strong reasons can be evideno^' shown in favour of the application. Where no applica- tion for an adjournment of the hearing below was made 268 THE PRACTICE OF THE COURT. for the purpose of obtaining the new evidence if pro- curable, or if the Court below in effect had the facts to be proved by the new evidence before it, then the further evidence will not be admitted (The Scindla, L. R. 1 P. C. 241 ; 4 Moo. P. C. N. S. 84. Compare with this case Bigsby V, Dickinson, L. R. 4 Ch. D. 24 ; 46 L. J. Gh. 280, where the Court acted upon this principle). As to costs, see ante, 0. Iv., r. 1. No appeal lies from a refusal by the judge of the Admiralty Division to allow an appeal from a County Court to the High Court under 31 & 32 Vict. c. 71, s. 27 {The Amatel, L. R. 2 P. D. 186 ; 47 L. J. Ad. 11). Mo ion by ^' It shall not, under any circumstances, be necessaiy for a re- way of spondent to give notice of motion by way of cross appeal ; but, if ^^^^^b1 ^ respondent intends, upon the hearing of the appeal, to contend that the decision of the Court below should be varied, he shall, within the time specified in the next rule, or such time as may be prescribed by special order, give notice of such intention to any parties who may be affected by such contention. The omiasion to give such notice shall not diminish the powers conferred by the Act upon the Court of Appeal, but may, in the discretion of the Court, be ground for an adjournment of the appeal, or for a special order as to costs. As to costs This applies to an application to vary the order of the °^" Court below as to costs, when the respondent is otherwise satisfied with the decree (Harris v. Aaron, L. R 4 Ch. D. 749 ; 25 W. R 353). Time of 7. Subject to any special order which may be made, notice by a notice. respondent under the last preceding rule shall in the case of any appeal from a final judgment be an eight days' notice, and in the case of an appeal from an interlocutory order a two days' notice, Entzy of 8. The imrty appealing from a judgment or order shall produce to appeal. ^j^g proper officer of the Court of Appeal the judgment or order or an office copy thereof, and shall leave with him a copy of the notice of appeal to be filed ; and such officer shall thereupon set down the appeal by entering the same in the proper list of appeals, and it shall come on to be heard according to its order in such list, unless the Court of Appeal or a judge thereof shall otherwise direct, bat so as not to come into the paper for hearing before the day named in the notice of appeal. APPEALS. 269 The proper officer in this case is the registrar of the Admiralty Division, who is the registrar in Admiralty appeals of the Appeal Court (J. A., 1875, s. 8, and 0. Ix.). 10. Where an ex parte application has been refused by the Court Ex parte below, an application for a similar purpose may be made to the Court •pplica- of Appeal ex parte within four days from the date of such refusal, *^"* or within such enlarged time as a judge of the Court below or of the Appeal Court may allow. 1 1 . When any question of fact is involved in an appeal, the evidence Evidence taken in the Court below bearing on such question shall, subject to f«>°* Court any special order, be brought before the Court of Appeal as follows : (a). As to any evidence taken by affidavit, by the production of printed copies of such of the affidavits as have been printed, and office copies of such of them as have not been printed. (6). As to any evidence given orally, by the production of a copy of the judge's notes, or such other materials as the Court may deem expedient. The rule as to office copies has been relaxed, when the affidavits were very voluminous, to save expense (Sickles V, Morris, 45 L. J. C. P. 148 ; 24 W. R. 102 ; and see Craw- ford V. Homsey Steam Company, 34 L. T. N. S. 923 ; 24 W. R 422). The official shorthand writer's notes are usually directed to be printed for the use of the Court of Appeal without au order from a judge. 12. Where evidence has not been printed in the Court below, the Printing Court below or a judge thereof, or the Court of Appeal or a judge evidence, thereof^ may order the whole or any part thert^of to be printed for the purpose of the appeal. Any party printing evidence for the purpose of an appeal without such order shall bear the costs thereof, unless the Court of Appeal or a judge thereof shall otherwise order. Where a party has had notes taken of the evidence, and both parties used them on appeal mthout leave, since they were absolutely necessary, the costs of the printing were allowed (Bigsby v. Dickinson, L. R. 4 Ch. D. 24 ; 46 L. J. €h. 280). 13. If, upon the hearing of an appeal, a question arises as to the ruling or direction of the judge to a jury or assessors, the Court shall 270 THE PRACTICE OF THE COURT. oave regard to verified notes or other evidence, and to emcb other materials as the Court may deem expedient. Inter- 14. No interlocutory order or rule from which there has been no orderJ^ appeal shall operate so as to bar or pi-ejudice the Court of Appeal from giving decision upon the appeal as may seem just Time for 15. No appeal from any interlocutory order shall, except by special appealing, jg^^g ^f ^.Jjq Court of Appeal, be brought after the expiration of twenty-one days, and 110 other appeal shall, except by such leave, be brought after the expiration of one year. The said respective periods shall be calculated from the time at which the judgment or order is signed, entered, or otherwise perfected, or, in the case of the refusal o£ an application, from the date of such I'efusal. Such deposit or other security for the costs to be occasioned by any appeal shall be made or given as may be directed under special circumstances by the Court of Appeal. The notice of appeal must be served within tv^enty-one days, whether the offices be open or shut {Ex parte SafiFery, L. R. 5 Ch. D. 365 ; 36 L. T. N. S. 532). Security As to circumstances under which security for costs will be allowed, see ante, 0. Iv. The motion on which the application is made should be set down on a day fixed for interlocutory motions (Grills v, Dillou, L. R. 2 Ch. D. 325 ; 24 W. R. 431). Stay of 16. An appeal shall not operate as a stay of execution or of pro- proceed- ceedings under the decision appealed from, except so far as the Court appealed from, or any judge thereof, or the Court of Appeal, may so order ; and no intermediate act or proceeding shall be invalidated, except 80 far as the Court appealed from may direct. Suy. In one case execution was stayed and the money ordered to be paid into Court and invested in Exchequer Bonds {The Cybeh, 37 L. T. N. S. 165; 3 Mar. L. C. N. S. 478, 481). S. 50 of J. A. 1873, does not apply to a case where a summons has been heard in the first instance by the judge {The Vivar, L. R. 2 P. D. 29 ; 35 L. T. N. S. 782). A stay of fourteen days is always granted on application. Applica- 17. Wherever under these rules an application may be made either tionfl. to the Court below or to the Court of Appeal, or to a judge of the Court below or of the Court of Appeal, it shall be made in the first inatance to the Court or judge below. APPEALS. 271 18. Every application to a judge of the Court of Appeal aliall be MotionB. by motion, and the pioviaiona of 0. liii. shall apply thereto. 19a. Admiralty appeals from Inferior Courts until further order shall be assigned as heretofore to the present judge of the Admiralty Court See ante, p. 133. Appeals from the Admiralty Division are sometimes on ?"^^P^? questions of law, more frequently on questions of fact, the Court When the former come before the Court of Appeal, they ?' ^\^^ are heard and decided as if they were argued for the first time. But, as regards the latter, certain well considered principles have been laid down. When the judge below must necessarily have been influenced in his decision by the demeanour and conduct of the witnesses, the Court of Appeal will rarely disturb his judgment ; but, when he has decided on inferences from certain facts, they will not hesi- tate to overrule his decision {The Olannihanta, L. R. 1 P. D. 283 ; 34 L. T. N. S. 934). When the amount of salvage awarded by the Court below is under appeal, it will not be altered unless the difference between the sum allowed and that which in the opinion of the Court of Appeal should have been allotted is very con- siderable, or, in other words, so exorbitant, so manifestly excessive (or the reverse), that it would be unjust to con- firm it. The following circumstances have been considered suflScient grounds for varying the amount, — that the judg- ment of the judge below has been influenced by something by which it should not have been so influenced, — that- he has failed to consider some fact which should have been duly weighed, — or that he has laid undue weight on a fact otherwise worthy of fair consideration (The Cuba, Lush. 14; 6 Jur. N. S. 152 ; The AmeHque, L R. 6 P. C. 468 ; 31 L. T. N. S. 854). By the Appellate Jurisdiction Act, 1875, a further appeal Appeal to lies to the House of Lords. Wlien a stay of proceedings is ^^^ °' desired pending such an appeal, application should be made to the Court of Appeal. It will usually be given on the 272 THE PRACTICE OF THE COURT. terms that the petition of appeal be presented within a month, and on the solicitor giving an undertaking as to the costs of the appeal {The Khedive, L R. 5 P. D. 1 ; 4 Asp. M. C. N. S. 182). ORDER LIX. EFFECT OF NON-COMPLIANCE. Non-com- 1. Non-compliance ydWi any of these rules shall not render the pliance. proceedings in any action void unless the Court or a judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terujs as the Court or judge may think fit. 2. The Court or a judge may at any time, and on such terms as to costs or otherwise as to the Court or judge may seem just, amend any defect or error in any proceeding ; and all such amendments may be made as may be necessary for the purpose of determining the real question or issue raised by or depending on the proceedings. ORDER LX. OFFICERS. Officers 1. All officers who at the time of the commencement of the said Act shall be attached to the Coui't of Admiralty shall be attached to the Probate, Divorce, and Admiralty Division of the said High Court. 2. Officers attached to any division shall follow the appeals from . the same division. See J. A. 1875, s. 8. ORDER LXI. SITTINGS AND VACATIONS. (The same as in the other Division of the High Court). Sittings. Michaelmas Sittings 2 Nov. 21 Dec Hillary „ 11 Jan, Wednesday before Easter. SITTINGS AND VACATIONS. 273 ■ Easter Sittings Tuesday after Easter Friday before Whit week. Sunday. Trinity „ Tuesday after Whitsun 8 Aug. week. Long Vacation 10 Aug. 24 Oct. VacationH. Chiistmas „ 24 Dec. 6 Jan. Easter „ Good Friday Easter Tuesday. Whitsun „ Saturday before Whit Whitsun Tuesday: Sunday. 3. The days of the commencement and termination of each sittinfl^ and vacation shall be included in such sitting and vacation respec- tively. 4. The several oflUces of the Supreme Court shall be open on every day of the year, except Sundays, Good Friday, Monday and Tuesday in Easter week, Whit Monday, Christmas Day, and the next following working day, and all days appointed by proclamation to be observed as days of general fast, humiliation, or thanksgiving. 4a. The offices of each district registrar of the High Court of Justice shall be open on every day and hour in the year on* which the offices of the registrar of the County Court of the place in which the district registry ia situate are required to be kept open. The hours during which the registry is open are from 10 a.m. to 4 p.m., and the marshal's office from 10 a.m. to 4 p.m., and on Saturdays the hours are 10 a.m. to 2 p.m. By Rule 53, April, 1880, these are the hours of the Supreme Court. 4b. The offices of the Supreme Court (including the Judges' chambers) shall close on Saturdays at 2 o'clock. 6. Two of the judfzes of the High Court sball be selected at the Vacation commencement of each Long Vacation for the hearing in London and ""**'^®^* Middlesex during vacation of all such applictitions as may require to be immediately or promptly heard. Such two judges shall act as vacation judges for one year from their appointment In the absence of arrangement between the judges, the two vacation judges shall bo the two judges last appointed (whether as judges of the said High Court or of any Court whose jurisdiction is by the said Act trans- ferred to the said High Court) who have not already served as vaca- tion judges of any such Court, and if there shall not be two judges for the time being of the said High Court who shall not have so served^ then the two vacation judges shall be the judge (if any) who has not so served and the senior judge or judges who has or have so T 274 THE PRACTICE OF THE COURT. served once only, accordin;^ to seniority of appointment, whether in the said High Court or such other Court as aforesaid. The Lord Chancellor shall not be liable to serve as a vacation judge. 6. The vacation judges may sit either separately or together as a divisional Court as occasion shall require, and may hear and dispose of all actions, matters, and other business, to whichever division the same may be assigned. No order made by a vacation judge shall be reversed or varied except by a divisional Court or the Court of Appeal, or a judge thereof, or the judge who made the order. Any other judge of the High Court may sit in vacation for any vacation judge. 7. The vacation judges of the High Court may dispose of all actions, matters, and other business of an urgent nature during any interval between the sittings of any division of the High Court to which such business may be assigned, although such interval may not be called or known as a vacation. These last three rules enable Admiralty business of a pressing nature to be heard during the vacations, but the matters must be of a really urgent nature to be heard by a vacation judge; if they are of such a character, it is now the practice to apply to him. As to non-delivery of pleadings, see O. Ivii., r. 4 terms. ORDER LXIII. INTERPHETATION OF TERMS. Interpre- The provisions of the 100th section of the Act shall apply to these tation of rules In the construction of these rules, unless there is anything in the subject or context repugnant thereto, the several words hereinafter mentioned or referred to shall have or include the meanings following : " Person " shall include a body corporate or politic : *' Probate actions'' shall include actions and other matters relating to the grant or recall of probate or of letters of adniinistratidn oiher than common form business: ** Proper ofl&cer " shall, unless and until any rule to the contrary is made, mean an officer to be ascertained as follows : — (a). Where any duty to be discharged under the Act or IXTERPRETATION OP TERMS. 275 » these rules is a duty which has heretofore been dischargeil by any officer, such officer shall continue to be the proper officer to discharge the same : (6). Where any new duty is under the Act or these rules to be discharged, the proper officer to discharge the same shall be such officer, having previously discharged analogous duties, as may from time to time be directed to discharge the same, in the case of an officer of the Supreme Court, or the High Court of Justice, or the Court of Appeal, not attached to any division, by the Lord Chancellor, and in the case of an officer attached to any division, by the president of the division, and in the case of an officer attached to any judge, by such judge. ** The Act " and " the said Act " shall respectively mean tlie Supreme Court of Judicature Act, 1873, as amended by this Act. T 2 APPENDIX I. STATUTES. PART I. STATUTES BBLATING TO PROCEDUBE AND JURISDICTION. THE SUPREME COURT OF JUDICATURE ACT, 1873.* 36 'coIu7of Superior Court of Record, and there shall be transferred to and vested Appeal. in such Court all jurisdiction and powers of the Courts following (that is to say) : {inter alia) — (5.) All jurisdiction vested in or capable of being exercised by her Maje»^ in Council, or the Judicial Committee of her Majesty's Privy Council, upon appeal from any judgment or order of the High Court of Admiralty. Appeals 19. The said Court of Appeal shall have jurisdiction and power t«» Court^**^** hear and determine appeals from any judguient or order, save as here- inafter mentioned, of her Majesty's High Court of Justice, or of any Judges or Judge thereof, subject to the provisions of this Act, and to such rules and orders of Court for regulating the terms and conditions on which such appeals shall be allowed, as may be made pursuant to this Act. For all the purposes of and incidental to the hearing and determi- nation of any appeal within its jurisdiction, and the amendment, execution, and enforcement of any judgment or order made on any such appeal, and for the purpose of eveiy other authority expressly given to the Court of Appeal by this Act, the said Court of Appeal shall have all the power, authority, and jurisdiction by this Act vested in the High Court of Justice. r«ticr to 21. It shall be lawful for her Majesty, if she shall think fit, at any time hereafter by Order in Council to direct that all appeals aiil>8hed "^' BO far as relates to the administration of justice ; and there shall no longer be terms applicable to any sitting or business of the High Court of Justice, or of the Court of Appeal, or of any commissioners to whom any jurisdiction may be assigned under this Act; but iu all JUDICATURE ACT, 1873. 283 oiber cases in which, under the law now existing, the tenns into J« A. 1878. which the legal year is divided are used as a measure for deteruiiniitg the time at or within which any act is required to be done, the same may continue to be referred to for the same or the like purpose, iinLeHs and until provision is otherwise made by any lawful authority. Siibjtict to rules of Court, the High Court of Justice and the Court of Appeal, and the Judges thereof respectively, shall have power to sit and act, at any time, and at any place, for the transaction of any part of the business of such Courts respectively, or of such Judges or Com- missioners, or for the discharge of any duty which by any Act of Parlia- ment, or otherwise, is ret^uired to be discharged during or after term. 28. Provision shall be made by rules of Court for the hearing, in Sittings in London or Middlesex, during vacation, by Judges ©f the High Cuurt ^»<»t*on. of Justice and the Court of Appeal respectively, of all such applica- tions as may require to be immediately or promptly heaixl. 31. For the more convenient despatch of business in the said ^^^P'J "' High Court of Justice (but not so as to prevent any Judge from court of sitting whenever requirea in any Divisional Court, or for any Judge Justice, of a different division from his own), there shall be in the said High Court five divisions, consisting of such number of Judges respectively as hereinafter mentioned. Such five divisions shall respectively include, immediately on the commencement of this Act, the several Judges following ; (that is to say,) (5.) One other division shall consist of two Judges who, imme- diately on the commencement of this Act, shall be the existing Judge of the Court of Probate and of the Court for Divorce and Matrimonial Causes, and the existing Judge of the High Court of Admiralty, unless either of them is appointed an ordinanr Judge to the Court of Appeal. The existing Judge of the Court of Probate shall (unless so appointed) be the president of the said division, and subject thereto the senior Judge of the said division, according to the order of precedence under this Act, shall be president. The Siiid five divisions shall be called respectively the Chancery Divisitin, the Queen's Bench Division, the Common Pleas Division, the Exchequer Division, and the Probate, Divorce, and Admiralty Division. Any Judge of any of the said divisions may be transferred by her Majesty, under her royal sign manual, from one to another of the said divisions. Upon any vacancy happening among the Judges of the said High Court, the Judge appointed to fill such vacancy shall, subject to the provisitiui* of tms Act, and to any rules of Court which may be made pursuant thereto, become a member of the same division to which the Judge whose place has become vacant belonged. 83. All causes and matters which may be commenced in, or which R"l<» ot shall be transferred by this Act to, the High Court of Justice, shall ^^d^f^r be distributed among the several divisions and Judges of the said diatribation High Court, in such manner as may from time to time be determined °' *w«ia«w- by any rules of Court, or orders of transfer, to be made under the authority of this Act ; and in the meantime, and subject thereto, all stich causes and matters shall l)e assigned to the eaid divisions respectively, in the manner hereinafter provided. Every document 284 APPENDIX. J. A. 1^78. by which any cause or matter may be commenced in the said Hijjh Court shidl be marked with the name of the division, or with tne name of the Judge, to which or to whom the same is as8igned. There shall be assigned (subject as aforesaid) to the Probate, Divorce, and Admiralty Divi8i«»n of the said High Court: (1.) All causes and matters pending in the Couit of Probate, or in the Court for Divorce and Matrimonial Causes, or in the High Court of Admiralty, at the commencement of this Act : (2.) All causes and matters which would have been within the exclusive cognizance of the Court of Probate, or the Court for Divorce and Matrimonial Causes, or of the High Court of Admiralty, if this Act had not passed, tmnsfer' ®®- -^"3^ ^^^ ^r matter may at any time, and at any stage thereof, and either with or without application from any of the parties thereto, be transferred by such authority and in such manner as rules of Court may direct from one division or Judge of the High Court of Justice to any other division or Judge thereof, or may by the like authority be retained in the division in which the same was commenced, although such may net be the proper division to which the same cause or matter ought, in the first instance, to have been assigned. Powers of 30. Any Judge of the said High Court of Justice may, subject to jud^o8™or *^y rules of Coiul, exercise in Court or in Chambers all or any part constituting of the jurisdiction by this Act vested in the said High Court, in idl Court. such causes and matters, and in all such proceedings in any causes or matters, as before the passing of this Act might have been heard in Court or in Chambers respectively by a single Judge of any of the Courts whose jurisdiction is hereby transferred to the said High Court, or as may be directed or authorised to be so heard by any rules of Court to be hereafter made. In all such cases, any Judge sitting in Court shall be deemed to constitute a Court. Distribution 42, Subject to any rules of Court, and in the meantime until such lunong^ho "^1*^® *^*^^ ^ made, all business arising out of any cause or matter Judges of assigned to the Chancery or Probate, Divorce, and Admiralty Division D?J^^'ftnd ^^'^^^ ^^^ ^^8^ Court shall be transacted and disposed of m the first AdmSSty* instance by one Judge ohly, as has been heretofore accustomed in the DiTisiona of Court of Chancery, tne Court of Probate and for Divorce and Matri- u»urt*^^ monial Causes, and the High Court of Admiralty respectively ; and every cause or matter which, at the commenoement of this Act, may be depending in tlie Court of Chancery, the Court of Probate and for Divorce and Matrimonial Causes, and the High Court of Admi- lalty respectively, shall (subject to the power of transfer) be assigned to the same Judge in or to whose Court the same may have heen depending or attached at the commencement of this Act ; and every cause or matter which after the commencement of this Act may be commenced in the Chancery Division of the said High Court shfdl be assigned to one of the Judges thereof, by marking the same with the name of such of the said Judges as the plaintiff or petitioner (subject to the power of transfer) may in his option think fit : Provided that (subject to any rules of Court, and to the power of transfer, and to ihe provisions of this Act as to trial of questions or it^sues by com- missioners, or in Middlesex or London) ail causes and matters which, JUDICATUaE ACT, 1873. 285 if this Act had not par appeal, may be given by a single Judge of the Court of Appeal ; and \p^LJ. a single Judge of the Court of Appeal may at any time during vaca- tion make any interim order to prevent prejudice to the claims of any parties pending an appeal as he may think fit ; but every such order made by a single Juace may be discharged or varied by the Court of Appeal or a Divisiomu Court thereof. 60. And whereas it is expedient to facilitate the prosecution in Her Majesty country districts of such proceedings as may be more speedily, Jj^^iJi^^t cheaply, and conveniently carried on therein, it shall be lawful for regiatrioa*^ her jfafesty, by Order in Council, from time to time to direct that in the there shall be district registrars in such places as shall be in such tUogupreJno order mentioned for districts to be thereby defined, from which writs court. of summons for the commencement of actions in the High Court of Justice may be issued, and in which such proceedings may be taken and recorded as are hereinafter mentioned ; and her Majesty may thereby appoint that any registrar of any County Court, or any registrar or prothonotary or district prothonotary of any local Court whose jurisdiction is hereby tninsferrud to the said High Court of 286 APPENDIX. J. A. 1873. Peals of district regifltries. Power of district registrars. Proceedings to be taken in district registries. Including arrest of ship, d!c. Power for Court to re- move pro- ceedings from district registries. Justice, or from which an appeal is hereby given to the said Court of Appeal, or any person who naving been a district registrar of the Court of Probate, or of the Admiralty Court, shall under this Act become and >>e a district registrar of the said High Court of Justice, or who shall hereafter be appointed such district registrar, shall and may be a district registrar of the said High Court for the purpose of issuing such writs as aforesaid, and having such proceedings taken before him as are hereinafter mentioned. This section shall come into opemtion immediately upon the passing of this Act. 61. In every such district registry such seal shall be used as the Lord Chancellor shall from time to time, either before or after the time fixed for the commencement of this Act, direct, which seal shall be impresged on every writ and other document issued out of or filed in such district registry ; and all such writs and documents, and all exemplifications and copies thereof, purporting to be sealed with the Feal of any such district registry, snail in all parts of the United Kingdom be received in evidence without further proof thereof. 62. All such district registrars shall have power to administer oaths and perform such other duties in respect of any proceedings pending in the said High Court of Justice or in the said Court of Appeal as may be assigned to them from timd to time by rules of Court, or by any special order of the Court. 64. Subject to the rules of Court in force for the time being, writs of suumions for the commencement of actions in the High Court oi Justice shall be issued by the district registrars when thereunto required ; and unless any order to the contrary shall be made by the High Court of Justice or by any Judge thereof, all such further pro- ceedings, including proceedings for the arrest or detention of a ship, her tackle, apparel, furniture, cargo, or freight, as may and ought to be taken by the respective parties to such action in the said High Court, down to and including entry for trial, or (if the plaintiff is entitled to sign final judgment or to obtain an order for an account by reason of the non-appearance of the defendant) down to and in- cluding final judgment, or an order for an account, may be taken before the district registrar, and recorded in the district registry, in such manner as may oe prescribed by rules of Court ; and all smh other proceedings in any such action as may be prescribed by rtili-s of Court shall be taken, and if necessary may be recorded in the same district registry. 65. Any party to an action in which a writ of summons shall have been issued from any such district regibtry shaU be at liberty at any time to apply, in such manner as shall be prescribed by rules of Court, to the said High Court, or to a Judge at Chambers of the division of the said High Court to which the action may be assigned, to remove the proceedings from such district registry into the proper office of the said High Court ; and the Court or Judge may, if it l)e thought fit, ^rant such application, and in such case the proceedincs and such onginal documents, if any, as may be filed tlierein shall upon receipt of such order be transmitted by the district registrar to the proper office of the said High Court, and the said action shall thenceforth proceed in the said High Court in the same manner as if it had been originally commenced by a writ of summons issued out of the proper office in London; or the Court or Judge, if it be JUDICATURE ACT, 1873. 287 thought right, may theretition direct that the proceedings may con- J. A. 1878. tin ue to be taken in such district registry. ' 66. It shall be lawful for the Court, or any Judge of the division ^^^^_ to which any cause or matter pending in the said High Court is ries mav be assigned, if it shall be thought fit, to order that atiy books or docu- J^'®^ ^ ments may be produced, or any accounts taken or inquiries made, in regtitran. the office of or oy any such district registrar as aforesaid ; and in any such case the district registrar f^hall proceed to carry all such direc- tions into effect in the manner prescribed ; and in any case in which any such accounts or inquiries snail have been directed to be taken or made by any district registrar, the report in writing of such district registrar as to the result of such accounts or inquiries may be acted upon by the Court, as to the Court shall seem fit. 76. All Acts of Parliament relating to the several Courts and u^e^f^**^" Judges whose jurisdiction is hereby transferred to the said High relating to Court of Justice and the said Court of Appeal respectively, or former wherein any of such Courts or Judges are mentioned or referred to, ^2ul*^ ^ shall be construed and take effect, so far as relates to anything done applying to or to be done after the commencement of this Act, as if the said }^JJJj^*i,4a High Court of Justice or the said Court of Appeal, and the Judges Act thereof, respectively, as the caae may be, had been named therein instead of such Courts or Judges whose jurisdiction is so transferred respectively. PART VI. Jurisdiction of Inferior Courts. 88. It shall be lawful for her Majesty from time to time by Ortler Power by in Council to confer on any inferior Court of civil jurisdiction the ck8 and |>a])er8 to Hiipremo Court. Interpreta- tion of terms. PART VIl. Miscellaneous Provisions, 02. All books, docnmente, papers, and chattels in the possession of any Court, the jurisdiction of which is hereby transferred to the High Court of Justice or to the Court of Appeal, or of any officer or person attached to any such Court, as such officer, or by reason of his being so attached, shall be transferred to the Supreme Court, and shall be dealt with by such officer or person in such manner as the High Court of Justice or the Court oi Appeal may by order direct ; and any person failing to comply with any order maae for the purpose of giving eifect to this section shall be guilty of a contempt of the Supreme Court 100. In the construction of this Act, unless there is anything in the subject or context repugnant thereto, the several words hereinafter mentioned shall have, or include, the meanings following ; (that is to Bay,) " Rules of Court ** shall include forms. *' Cause " shall include any action, suit, or other original pro- ceeding between a plaintiff and a defendant, and anv criminal proceeding by the Crown. '* Suit " shall include action. ** Action " sliall mean a civil proceeding commenced by writ, or in such other manner as may be prescribed by rules of Court : and shall not include a crinunal proceeding by the Crown. "Plaintiff" shall include every person asking any relief (other- wise than by way of counter-claim as a defendant) against any other person by any form of proceeding, whether the same be taken by action, suit, petition, motion, summons, or otherwise. '* Petitioner " shall include every person making any application to the Court, either by petition, motion, or summons, othei^ wise than as against any defendant. •* Defendant " shall include every person served with any writ of summons or process, or served with notice of, or entitled to attend any proceedings. " Party " shall include every person served with notice of, or attending any proceeding, although not named on the record. JUDICATtJRE ACT, 1875. 289 " Matter " shall include every proceeding iu the Conrt not in a J. i. 187ff. cause. " Pleading " shall include any petition or summons, and also shall include the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any counter-claim of a defendant. *^ Judgment " shall include decree. " Order" shall include rule. ** Oath " shall include solemn affirmation and statutory declara- tion. '* Pension " shall include retirement and superannuation allow- ance. "Existing" shall mean existing at the time appointed for the commencement of this Act. THE SUPREME COURT OF JUDICATURE ACT, 1875. 38 & 39 Vict. Cap. 77. 8. Whereas by section eleven of the principal Act it is provided as j^ ^ 1975 follows : '* Every existing Judge who is by this Act made a Judge of the High Court of Justice or an ordinary Judge of the Court of j^^"*"^'^ Appeal shall, as to tenure of office, rank, title, salary, pension, re^iSSJ. patronage, and powers of appointment or dismissal, and all other privileges and disqualifications, remain in the same condition as if this Act had not passed ; and, subject to the change effected in their jurisdiction and duties by or in pursuance of the provisions of this Act, each of the said existing Judges shall be capable of performing and liable to perform all duties which he would have been capable of performing or liable to perform in pursuance of any Act of Parlia- ment, law, or custom if this Act had not passed. !No Judge appointed before the passing of this Act shall be required to act under any com- mission of assize, nisi prius, oyer and terminer, or* gaol delivery, unless he was so liable by usage or custom at the commencement of this Act : " And whereas the Judge of the High Court of Admiralty is by the principal Act appointed a Judge of the High Court of Justice : And whereas such Judge is, as to salary and pension, inferior in position to the other Puisne Judges of the Superior Courts of Common Law, but holds certain ecclesiastical and other offices in addition to the office of Judge of the High Court of Admiralty : And whereas it is expedient that such Judge, if he be willing to relinquish such other offices, should be placed in the same position as to rank, salary, and pension as the other Puisne Judges of the Supe- rior Courts of Common Law : Be it enacted that — If the existing Judge of the High Court of Admiralty under his hand signifies to the Lord Chancellor in writing, before the com- menoement of the principal Act, that he is willing to relinquish such U 290 APPENDIX. J. A. lt7S other offices as aforeBaid, and does before the oommenoemeiit of the principal Act resign all other offices of emolument held by him except the office of J ndge of the High Court of Admiralty, he shall, from and after the commencement of the principal Act, be entitled to the same rank, salary, and pension as if he had been appointed a Judge of the High Court of Justice immediately on the commencement of the prin- cipal Act, witii this addition, that, in reckoning service for the pur- poses of his pension, his service as a Judge of the High Court of Admiralty shall be reckoned in the same manner as if the High Court of Justice had been established at the time of his accepting the office of Judge of tibe High Court of Admiralty, and he had continued from such time to be a Judge of the said High Court of Justice. The present holder of the office of registrar of her Majesty in Ecde- siasticai and Admiralty causes shall, as respects any appeals in which he would otherwise be concerned coming within the cognizance of the Court of Appeal, be deemed to be an officer attached to the Supreme Court ; and the office, so far as rcsjiccts the duties in relation to such appeals as aforesaid, shall be deemed to be a separate office within the meaning of section seventy-seven of the principal Act, and may be dealt with accordingly. He shall be entitled, in so far as he sustains any loss of emoluments by or in consequence of the principal Act or this Act, to prefer a claim to the Treasury in the same manner as an officer paid out of fees whose emoluments are affected by the passing of the princi(>al Act is entitled to do under section eighty of the principal Actw Subject as aforesaid, the person who is at the time of the |>assingoi this Act r^^istrar of her Majesty in Ecclesiastical and Admindty causes shall, notwithstanding anything in the principal Act or this Act, have the same rank and hold his office upon the same tenure and upon the same terms and conditions as heretofore ; but it shall be lawful for her Majesty by Order in Council made upon the recom- mendation of the Lord Chancellor, with the concurrence of the Treasury, to make, notwithstanding anything contained in any Act of Parliament, such arrangements with respect to the duties of the said last-mentioned office, either by abolition thereof or otherwise, as to her Majesty may seem expedient : Provided that such order shall not take effect during the continuance in such office of the said person so being registrar at the time of the passing of this Act, without his assent. Every Judge of the Probate, Divorce, and Admiralty Division of the said High Court of Justice appointed after the passing of this Act shall, so far as the state of business in the said division will admit, share with the Judges mentioned in section thirty-seven of the prin- cipal Act the duty of holding sittings for trials by jury in London and Imddlesex, and sittings under commissions of assize, oyer and ter- miner, and gaol delivery. ProTision u H. Subject to amy rules of Court, and to the provisions of the iny^SiS principal Act and this Act, and to the power of transfer, every perM>n (wb^ to by whom any cause or matter may be commenced in the said High >^) ^ Court of Justice shall assign sndi cause or matter to one of the divi- w^SbdiYi- sions of the said High Court as he may think fit, by marking the aion ho wUl document by which the same is commenced with the name of such JUDICATURE ACT, 1875. 291 division, and giving notice tliereof to the proper officer of the Court : J. A. 1875. Provided that — — — (1.) All interlocutory and other steps and proceedings in or mibHiituticm before the said High Court in any cause or matter subse- ^<>r im & 37 quent to the commencement thereof, shall be taken (subject ^ /^^ ^' ^' to any rules of Court and to the power of transfer) in the division of the said High Court to which such cause or matter is for the time being attached ; and, (2.) If any plaintiff or petitioner shall at any time assign his cause or matter to any division of the said High Court to which, according to the rules of Court or the provisions of the principal Act or this Act, the same ought not to be assigned, the Court, or any Judge of such division, upon being informed thereof, may, on a summary application at any stage of the cause or matter, direct the same to be trans- ferred to the division of the said Court to which, according to such rules or provisions, the same ought to have been assigned, or he may, if he think it expedient so to do, retain the same in the division in which the same was commenced ; • and all steps and proceedings whatsoever taken by the plain- tiff or petitioner or by any other party in any such cause or matter, and all orders made therein by the Court or any Judge thereof before any such transfer, shall be valid and effectual to all intents and purposes in the same manner as if the same respectively had been taken and made in the proper division of the said Court to which such cause or matter ought to have been assigned ; and, (3.) Subject to rules of Court, a person commencing any cause or matter shall not assign the same to the Probate, Divorce, and Admiralty Division unless he would have been entitled to commence the same in the Court of Probate, or in the Court for Divorce and Matrimonial Causes, or in the High Court of Admii-alty, if this Act had not passed. 13. Whereas by section sixty of the principal Act it is provided Amondmont that for the purpose of facilitating the prosecution in country districts gg ^ 37 yid;^ of legal proceedings, it shall be lawful for her Majesty by Order in c. 66, aato Council u-om time to time to direct that there shall be district 1 egis- J^^^^umre. tmrs in such places as shall be in such order mentioned for districts tol>e thereby defined ; and whereas it is expedient to amend the said section ; be it therefore enacted that — Where any such order has been made, two persons may, if required, be a])pointed to perform the duties of district registrar in any district named in the onler, and such persons shall be deemed to be joint district registrars, and shall perform the said duties in such manner as may from time to time be directed by the said order, or any Order in Council amending the same. Moreover, the registrar of any inferior Court of Record having juris- diction in any part of any district defined by such order (other than a County Court) shall, if appointed by her Majesty, be qualified to be a district registrar for the said distiict, or for any and such part thereof as may be directed by such order or any order amending the same. Every district registrar shall bo deemed to be an officer of the u2 292 APPENDIX. J. A. 1875. Provision oa to rules of l*robate, Divorce, and Admiralty Courts, being rules of the High Court,— in substitution for 8«3 k 37 Vict c. 06, 8. 70. Provision for saving of existing pn)cedure of Courts when not inconsis- tent with this Act, or rules of Court, — in substitut ion for 36 Si H7 Vict. c. 00, H. 73. Additional power as to regulation of practice and proce- dure by rules of Court. Fixing and collection of fees in High Court and Court of Appeal Supreme Court, and be subject accordingly to the jurisdiction of sacli Court, ami otthe divisions thereof. 18. All rules and ordei*s of Court in force at the time of the com- mencement of til is Act in the Admiralty Court, except so far as they are expressly varied by the first schedule hereto, or by rules of Court made by Order in Council before the commenoement of this Act, shall remain and be in force in the High Court of Justice and in the Court of Appeal respectively until they shall respectively be altered or annulled by any rules of Court made after the commencement of this Act. 21. Save as by the principal Act or this Act, or by any rules of Couii;, may be otherwise provided, all forms and methoas of pro- cedure which at the commencement of this Act were in force in any of the Courts whose jurisdiction is by the principal Act or this Act transferred to the said High Court and to the said Court of Append respectively, under or by virtue of any law, custom, general OTxier, or rules whatsoever, nnd which are not inconsistent with the prin- cipal Act or this Act or with any rules of Court, may continue to be used and practised, in the said High Court of Justice and the said Court of A])peal respectively, in such and the like cases, and for such and the like purpose.^, as those to which they would have been applicable in the respective Courts of which the jurisdiction is so transferred, if the principal Act aud this Act had not passed. 24. Where niiy provisions in respect of the practice or procedure of any Courts the jurisiliction of which is transferred by the principal Act or this Act to the High Court of Justice or the Court of Appeal, are contained in any Act of Parliament, rules of Court may be made for modifying such provisions to any extent that may be deemed necessary for adapting the same to the High Court of Justice and the Court of Appeal, without prejudice nevertheless to any power of the Lord Chancellor, with the concurrence of the Treasury, to make any rules with respect to the Paymaster- General, or otherwise. Any provisions relating to the payment, transfer, or deposit into, or in, or out of any Court of any money or property, or to the dealin^ir therewith, shall, for the purposes of this section, be deemed to be provisions relating to practice and procedure. The Lord Chancellor, with the concurrence of the Treasury, may from time to time, by order, determine to what accounts and how intituled any such money or property as last aforesaid, whether paid, transferred, or deposited before or aiter the commencement of this Act, is to be carried, and modify all or any forms relating to such accounts ; and the Governor and Company of the Bank of England, and all other companies, bodies corporate, and persons, shall make such entries and alterations in their books as may be directed by the Lord Chancellor, with the concurrence of the Treasury, for the pur- pose of can-ying into e£fect any such order. 26. Tlie Lord Chancellor, with the advice and consent of the Judges of the Supreme Court or any three of them, and with the concurrence of the Treasury, may, either before or after the com- mencement of this Act, by order, fix the fees and percentages (in- cluding the percentage on estates of lunatics) to l>e taken in the High Court of Justice or in the Court of Appeal, or in any Court created by any commission or in any office which is connected vrith JUDICATUilE ACT, 1875. 293 niiy of those Courts, or in which any business connected with any of J. A. 1875. those Courts is conducted, or by any officer paid wholly or partly ' tuit of public moneys who is attached to any of those Courts or the Supreme Court, or any Judge of those Courts, including the masters and other officers in lunacy, and may from time to time by order increase, reduce, or abolish all or any of such fees and percentages, cace or by any person nominated by S^^^^SJ^J them, or within the jurisdiction of the cinque ports by any commis- of Admi. sioners, respecting the amount of salvage to be paid, or respecting J^^y on dis- any claims and demands for services or compensation, whicn such *"^"**°^ justices and commissioners within their several jurisdictions are empowered to decide under the provisions of two Acts passed in the second year of the reign of King Qeorge the Fourth, for remedying certain defects relative to the adjustment of salvage, or whenever any sum shall have been voluntarily paid on any such account of salvage, services or compensation, it shall be lawful for anv person interested in the distribution of the amount awarded or paid te require distri- bution to be forthwith made thereof, and the person or persons by whom such amount shall be awarded, or in the case of voluntary pay- ment the person by whom the same shall have been received, ^hall forthwith proceed to the distribution thereof among the seveml per- sons entitled thereunto, to be certified in the case of an award under the hand of the person or persons by whom such amount shall be awarded, and an account of every such distribution shall be annexed to the award ; and if any person interested in the distribution shall 296 APPENDIX. A. C. Aot, think himself aggrieved on account of its not being made according 1840. to the award, or otherwise, it shall be lawful for him, within fourteen days after the makins^ of the award, or payment of the luoney, but not afterwards, to take out a monition from the said High Court of Admiralty, requiring any person being in possession of any part of the amount awarded or voluntarily paid to bring in the same, to abide the judgment of the Court concerning the distribution thereof ; and in the Ciiae of an award the person or persons by whom the award shall have been made shall, upon monition, send without delay to the said High (^ourt of Admiralty a copy of the proceedings before him and them, aud of the award, on unstamped paper, certified under his or their hand ; and the same shall be admitted by the Court as evidence, aud the amount awarded or voluntarily paid shall be dit^- tributed according to the judgment of the Court hJ'^c^i^' 6. And be it enacted, that the High Court of Admiralty shall have ciirtCH, may j nrisdiction to decide all claims and ciemauds whatsoever in the nature mijudiciito of salvage for services rendered to or damage received by any ship for services ^^^ sea-goiug vessel, or in the nature of towage, or for necessaries and nocea- supplied to any foreign ship or sea-going vessel, and to enforce the "Jji^' u f payment thereof, whether such ship or vessel may have been within on the^high ^^^^ body of a county, or upon the high seas, at the time when the B<»ii. services were i-endered or damage received, or necessaries furnished, in respect of which such claim is made. Evidence 7^ ^nd be it enacted, that in any suit depending in the said High taken viva Court of Admiralty, the Court (if it shall think fit) may summon rocr in oiwn before it and examine or cause to be examined witnesses by word of Court. niouth, and either before or after examination by deposition, or before a commissioner, as hereinafter mentioned ; and notes of such evidence shall be taken down in writing by the Judge or registrar, or by such other person or persons, and in such manner, as the Judge of the said Court shall direct. Evidence 3. And be it enacted, that the said Court may, if it shall think fit, tAkcn viva "^ a^y such suit issue one or more special commissions to some person, 12C!i^!""* a being an advocate of the said High Court of Admiralty of not less "''"" " tlian seven years' standing, or a barrister-at-law of not less than seven years' standing, to take evidence by word of mouth, upon oath, which every such commissioner is hereby empowered to administer, at such time or times, place or places, and as to such fact or fiicts, and in sucli manner, order and course, aud under such limitations and restrictions, and to transmit the same to the registry of the said Court, in such form and manner as in and by the commission shall be directed ; and that such commissioner shall be attended, and the witnesses shall be examined, cross-examined, and re-examined by the parties, their counsel, proctors or agents, if such parties, or either of them, shall think fit so to do ; and such commission shall, if need be, make a special report to the Court touching such examination, and the conduct or absence of any witness or other person thereon or relating thereto ; and the said High Court of Admiralty is hereby authorized to institute such proceedings, and make sudi order or orders, upon such report, as justice may require, and as may be instituted or made in any case of contempt of the said Court o/witoSw3 ®* "^"^ ^® ^^ enacted, that it shall be lawfid in any suit depending uud produc. lu the Said Court of Admiralty for the Judge of the said Courts or for commlft. biuncr ADMIBALTY COURT ACT, 1840. 297 any such commissioner appointed in pursuance of this Act, to require A. C. Act, I he attendance of any witnesses, ana the production of any deeds, 1840. eviJt»nces, books or writings, by writ, to be issued by such Judge or tion^f oimniisdioner in such and the same form, or as nearly as may be, as P^pe» may that in which a writ of subtxeiia ad testificandum^ or of mibpoena ^fiJ^C dv^^ ttcum, is now issued by her Majesty's Court of Queen's Bench subpoona. at Westminster ; and that every person disobeying any such writ so to be issued by the said Judge or commissioner shall be considered as in contempt of the said High Court of Admiralty, and may be punished for such contempt in the said Court. 10. And be it enacted, that all the provisions of an Act passed in ^^°^y. the fourth year of the reign of his late Majesty, intituled " An Act J^ c, 42, ox- ' for the further Amendment of the Law, and better Administration tended'to of Justice," with respect to the admissibility of the evidence of wit- ^'^'J^Jr^f^ uesses interested on account of the verdict or judgment, shall extend ^' to the admissibility of evidence in any suit pending in the said Court of Admiralty, and the entry directed by the said Act to be made on the record of judgment shall be made upon the document containing the final sentence of the said Court, and shall have the like effect as the entry on such record. 11. And be it enacted, that in any contested suit depending in the rpwer to said Court of Admiralty, the said Court shall have power, if it shall ^JJ^ think fit so to do, to direct a trial by jury of any issue or issues on any question or questions of fact arising in any such suit, and that the substance and foim of such issue or issues shall be specified by the Judge of the said Court at the time of directing the same ; and if the pirties differ in drawing such issue or issues, it shall be referred to the Judge of the said Court to settle the same ; and such trial shall be had before some Judge of her Majesty's Superior Courts of Common Law at Westminster, at the sittings at nisi prius in Loudon or Mid- dlesex, or before some Judge of assize at nisi prius, as to the said Court shall seem fit. 12. And be it enacted, that the cost of such issues, or of such com- Costa of mission as aforesaid, as the Judffe of the said High Court of Admiralty ^mia^*^ shall under this Act direct, shm be paid by such party or parties, Bions to be person or persons, and be taxed by trie registrar of the said High *** *J® ****" Court of Admiralty, in such manner as the said Judge shall direct, ^ court. and that payment of such costs shall be enforced in the same manner as oosta between party and party may be enforced in other proceed- ings in the said Court. 13. And be it enacted, that the said Court of Admiralty, upon Power to application to be made within three calendar months after the trial ^J^ ^^"^ of any such issue by any party concerned, may grant and direct one or more new trials of any sucn issue, and may order such new trial to take place in the manner hereinbefore directed with regard to the first trial of such issue, and may by order of the same Court direct 8uch costs to be paid as to the said Court shall seem fit upon any appUcatiou for a new trial, or upon any new trial, or second or other new trial, and may direct by whom and to whom and at what times and in what manner such costs shall be paid. 14. And be it enacted, that the granting or refusing to grant an Granting issue, or a new trial of any such issue, may be matter of appeal to nJw*&, her Majesty la Council. matter of appeal. 298 APPENDIX. A. C. Aot, 15. And be it enacted, that at the trial of any issue directed by the ^®5^_ said High Court of Admiralty, either party shall have all the like Bills of ex. powers, rights and remedies with respect to bills of exceptions as ceptioiMto parties impleaded before justices may have, by virtue of the statute ]f f ^'^bT^ "JJ^de in tiiat behalf in the thirteenth year of the reign of Kiog isucs, ^ Ericd. As to claims for damage by any sUp. WiiERKAS it is expedient to extend the jurisdictiou and improve the pnictice of the lli<»li Court of Admiralty of England : be it there- fore «. Ji.irtx J by the Queen's most Excellent Majesty, by and with the Ji'lvice and couseut of the Lords Spiritual and Tern poral, and Comiunus, in this present Parliament assembled, and by the autho- rity ol tlie same, as follows : 1. Tliis Act may be cited for all purposes as "The Admiralty Court Act, 1861.'' 2. In the inUrpretation and for the purposes of this Act (if not inconsistent with the context or subject) the following terms shall have the respective meanings hereinafter assigned to them ; that is to say, ^'2Sliip" shall include any description of vessel used in naviga- tion not propelled by oars : " Cause " shall include any cause, suit, action, or other proceed- ing in the Court of Admiralty. 8. This Act shall come into operation on the first day^ of Jane one thousand eight hundred and sixty-one. 4. The High Court of Admiralty shall have jui-isdiction over any claim for the building, eijuipping, or repairing of any ship, if at the time of the institution of the cause the ship or the proceeds thereof are under arrest of the Court. 5. The lii^h Court of Admiralty shall have jurisdiction over any claim for necessaries HUp"plied to any ship elsewhere than in the port to which the ship belou<;s, unless it is shown to the satiafactioo of the Court that at the time of the institution of the cause any owner or part-owner of the ship is domiciled in England or Wales: l)rovi(led always, that if in any such cause the plaintiff do not recover twenty poimds he shall not be entitled to any custA, charges, or expenses incurred by him therein, unless the Judge si 1 all certify that the cause was a fit one to be tried in the said Court. 6. The High Court of Admiralty shall have jurisdiction over any claim by the owner or consignee or assignee of any bill of lading of any gooiis carried into any port in England or Wales in any ship, for damage done to the goods or any pai't thereof by the negligence or misconduct of or for any breach of duty or breach of contract on the part of the owner, master, or crew of the ship, unless it is shown to the satisfaction of the Court that at the time of the institution of the Ciiuse any o>\^er or part-owner of the ship is domiciled in England or Wales : provided always, that if in any such cause the plaintiff do not recover twenty pounds he shall not be entitled to any costs, charges, or expenses incuiTed by him therein, unless the Judge shall certify that the cause was a fit one to be tried in the said Court. 7. The High Court of Admiralty shall have jurisdiction over any claim for damage done by any ship. ADMIRALTY COURT ACT, 1861. 301 8. The High Court of Admiralty shall have jurisdiction to decide ^ C. Act, all questions arising between the co-owners, or any of them, touching 1861. the ownership, possession, employment, and earnings of any ship re- nigh Court gistered at any port in England or Wales, or any shtire thereof, and «f Admi- may settle all accounts outstanding and unsettled between the parties ^^^^^ in relation thereto, and may direct the said ship or any share thereof tiona a? ST^ to be sold, and may make such order in the premises as to it shall ownerehip, seem tit Acofahlp.. 9. All the provisions of " The Merchant Shipping Act, 1854," in fJ^^^f^^ regard to salvage of life from any ship or boat within the limits of c. io4, as to the United Kingdom, shall be extended to the salvage of life from claimiifor any British ship or boat, wheresoever the services may liave been ^^^^ ^' rendered, and from any foreign ship or boat, where the services have been rendered either wholly or in pai*t in British waters. 10. The High Court of Admiralty shall have jurisdiction over Aa to clalma any claim by a seaman of any ship for wages earned by liim on board i^dlOTdiji- the ship, whether the same be due under a special contract or other- buraomouto "wise, and also over any claim by the master of any sliip for wages by master ol earned by him on board the ship, and for disbursements made by ** ^ him on account of the ship : provided alw^ays, that if in any such cause the plaintitF do not recover fifty pounds, he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the Judge shall certify that the cause was a fit one to be tried in the said Court. 11. The High Court of Admiralty shall have jurisdiction over 8 *4 Vict any claim in respect of any mortgiif^e duly registered according to ^^ to ^' the provisions of "The Merchant Shipping Act, 1854," whether the mortgages «hip or the proceeds thereof be under arrest of the said Court or fi^f^^T* ^ not. Admlnaty. 12. The High Court of Admiralty shall have the same powers Sections C2 over any British ship, or any share therein, as are couferrea upon ]^ ing court of Act, 1854." Admiralty. 14. The High Court of Admiralty shall be a Court of Record Court to be for all intents and purposes. iiSSS ^' 15. All decrees and orders of the High Court of Admiralty, u^^^j^^^j whereby any sum of money, or any costs, charges, or expenses, orders of shall be payable to any person, shall have the j>anie eff'ect as judg- ^^^Sl^t, mente in the Superior Courts of Common Law, and the persons to to have * whom any such moneys, or costs, charges, or expenses, shall be pay- J^jct of able, shall be deemed judgment creditors, and all powers of enforcing it^mmon judgments possessed by the Superior Courts ot Common Law, or law. any Judge thereof, with respect to matters depending in the same Courts, as well against the ships and goods arrested as against the person of the judgment debtor, shall be possessed by the said Court of Admiraltylwiui respect to matters therein depending; and all remedies at common law possessed by judgment creditors shall be 302 APPENDIX. A. C. Aet, 1861. As to claims to goods taken in execution. Powon of Superior Courts ex- tended to Court of Admiralty. Party in Court of Admiralty may appl v for an order for inspec- tion by Trinity masters. Admission of docu' ments. in like manner possessed by persons to whom any moneys, coets, charges, or expenses are by such orders or decrees of the said Court of Admiralty directed to be paid. 16. If any claim shall be made to any goods or chattels taken in execution under any process of the High Court of Admiralty, or in respect of the seizure thereof, or any Act or matter connected there- with, or in respect of the proceeds or value of any such goods or chattels, by any landlord for rent, or by any person not being the party against whom the process has issued, the registrar of the said Court may, upon application of the officer charged with the execution of the process, whether before or after any action brought against such officer, issue a summons calling before the said Court both the party issuing such process and the party making the claim, and thereupon any action which shall have been brought in any of her Majesty's Superior Courts of Eecord, or in any local or inferior Court, in respect of such claim, seizure, act, or matter as aforesaid, shall be stayed, and the Court in which such action shall have been brought, or any Judge thereof, on proof of the issue of such summons, and that the goods and chattels were so taken in execution, may order the party bringing the action to pay the costs of all proceeding had upon the action after issue of the summons out of the said Admiralty Court, and the Judge of the said Admiralty Court shall adjudicate upon the claim, and make such order between the parties in respect thereof and of the costs of the proceedings, as to bim shall seem fit, and such order shall be enforced in like manner as any order made in any suit brought in the said Court. Where any 8i:>'h claim shall be made as aforesaid the claimant may deposit with the officer charged with the execution of the process either the amouut or value of the goods claimed, the value to be fixed by a] praisemeiit in case of dispute, to be by the officer paid into Court to abide the decision of the Judge upon the claim, or the sum which the officer shall be allowed to charge as costs for keepiug possession of the goods until such decision can be obtained, and in default of the claimant so doing the officer may sell the goods as if no such claim had been made, and shall pay into Court the proceeds of the sale, to abide the decision of the tJudge. 17. The Judge of the High Court of Admiralty shall have all such powere as are possessed by any of the Superior Courts of Common Law or any Judge thereof to compel either party in any cause or matter to answer interrogatories, and to enforce the pro- duction, inspection, and delivery of copies of any document in his possession or power. 18. Any party in a cause in the High Court of Admiralty shall be at libertv to apply to the said Court for an order for the inspection by the Trinity masters or others appointed for the trial of the said cause, or by the party himself or his witnesses, of any ship or other personal or real proj)erty, the inspection of which maj- be material to the issue of the cause, and the Court may make such order in respect of the costs arising thereout as to it shall seem fit. 19. Any party in a cause in the High Court of Admiralty may call on any other party in the cause by notice in writing to admit any document^ saving all just exceptions, and in case of refusal or neglect to admit, the costs of proving the document shall be paid by ADMIRALTY COURT ACT, 1861. 803 the party so neglecting or reftunng, whatever the result of the cause A. 0. Aet, may he, nnless at the trial the Judge shall certify that the refusal IMl. to admit was reasonahle. 20. Whenever it shall he made to appear to the Judge of the Po^erto High Ck>urt of Adnuralty that reasonahle efforts have heen made to Admii^ty effect personal service of any citation, monition, or other process when per- iasued imder seal of the said Court, and either that the same has Sf^*Son°* come to the knowledge of the party thereby cited or monished, or has not ^n that he wilfully evades service of the same, and has not appeared effected to thexeto, the said Judge may order that the party on whose oehalf toproceed.** the citation, monition, or other process was issued be at liberty to proceed as if personal service had been effected, subject to such con- ditions as to the Judge may seem fit, and all proceedings thereon shall be i\a effectual as if personal service of such citation, monition, or other process had been effected. 21. The service in any part of Qreat Britain or Ireland of any ^^ the writ of subpoena ad testificandum or subpana duces tecum, issued J^bpana' imder seal of the High Court of Admiralty, shall be as effectual as out of En^r- if the same had been served in England or Wales. Waili"^ 22. Any new writ or other process necessary or expedient for po^^^ ^^ giving effect to any of the provisions of this Act may be issued from issue now the High Court of Admiralty in such form as the Judge of the wid ^** *>*" Court shall from time to time direct. process. 28. All the powers possessed by any of the Superior Courts of judge and Common Law or any Judge thereof, under the Common Law Proce- nffi^tnu- to dure Act, 1854, and othei-wise, with regard to references to arbitration, pSwerafto proceedings thereon, and the enforcing of awards of arbitrators shall arbitration DC possessed by the Judge of the High Court of Adujiralty in all »« J»id««« causes and matters dependine in the said Court, and the registrar of masters nt the said Court of Admiralty shall possess as to such matters the same common powers as are ])ossessed by the masters of the said Superior Courts of ^^' Common Law in relation thereto. 24. The registrar of the High Court of Admiralty shall have the Section i6 same powers under the fifteenth section of the Merchant Shipping y'j^^ * ^j^ Act, 1854, as are by the said section conferred on the masters of her extended to Majesty's Court of Queen's Bench in England and Ireland. registrar 25. The registrar of the High Court of Admiralty may exercise, IdmiSity! with reference to causes and matters in the said Court, the same powen of powers as any surrogate of the Judge of the said Court sitting in regiBtrar chambers might or could have heretofore lawfully exercised ; and all ^^L ^ powers and authorities by this or any other Act conferred upon or assistant vested in the registrar of the said High Court of Admiralty may be «gi«trar. exercised by any deputy or assistant registrar of the said Court. 26. The registrar of the said Court of Admiralty shall have power False oath to administer oaths in relation to any cause or matter depending in ^onde^od the said Court ; and any person who shall wilfully depose or amrm perjury. falsely in any proceeding before the registrar or before any deputy or assistant registrar of the said Court, or before any person authorized to administer oaths in the said Court, shall be deemed to be guilty of perjury, and shall be liable to all the pains and penalties attaching to wilful and corrupt perjury. 27. Any advocate, barrister-at-law, proctor, attorney, or solicitor of Appoint- 04 appendix! A. C. Act, ten years' standing may be appointed registrar or aRsistant or deputy 1881. registrar of the said Court, ment of re- *2®* -^^7 advocate, barrister-at-law, proctor, attorney, or solicitor gistrar ftnd may be appointed an examiner of the High Court of Admiralty. orlSiHtaiit '^®* '^"^ person who shall have paid on his admission in any regiMtnir. Court as a proctor, solicitor, or attorney the full stamp duty of Appoint- twenty-five pounds, and who has been or shall hereafter be admitted ment of g^ proctor, solicitor, or attorney (if in other resoects entitled to be so Stem"dut *^^™i*^^^)» shfdl be liable to no further stamp duty in respect of such not*payabio Subsequent admission. on Hubse- 30. Any proctor of the High Court of Admiralty may act as agent niis«h»ni of ®* '^'^X attorney or solicitor, and allow him to participate in the profits proct.)rs ur of and incident to any cause or matter depending in or connected solicitors, ^jt}^ the said Court ; and nothing contained in the Act of the fifty- act a^r l"nt^ ^^^^^ 7^^^ ^^ *^^® reign of King George the Third, chapter one of BoUciUjre. hundred and sixty, shall be construed to extend to prevent any proctor from so doing, or to render him liable to any penalty in respect thereof. 2 Hen. 4, c. 81. The Act passed in the second year of the reign of King Henry 11, repealed, the Fourth, intituled "A Remedy for Him who is Wrongfully Pursued in the Court of Admiralty,'' is hereby repealed. Power of 32. Any party aggrieved by any order or decree of the Judge of "n^o-*" the said Court of Admiralty, whether made ex partt or otherwise, cutory XQ&7) with the permission of the Judge, appeal thei'efrom to her matters. Majesty in Council, as fully and effectually iis from any final decree or sentence of the said Court. Boil given 33. In any cause in the High Court of Admiralty bail may be S ^Sn?"*^ taken to answer the judgment as well of the said Court as of the raitvgood Court of Appeal, and the said High Court of Admiralty may with- in the Court hold the release of any property under its arrest until such bail has of AVpeaL i^^^j^ given ; and in any appeal from any decree or order of the High Court of Admiralty, the Court of Appeal may make and enforce its order against the surety or sureties who may have signed any such bail bond in the same manner as if the bail had been given in the Court of Appeal. {f H *^^f ®^' '^^^® ^^g^ Court of Admiralty may, on the application of the cauBea^d defendant in any cause of damage, and on his instituting a cross cross cauiscs. causu for the damage sustained by him in respect of the same colli- sion, direct that the principal cause and the cross cause be heard at the same time and upon the same evidence ; and if in the princi]»ai cause the ship of the defendant has been arrested, or security given by him to answer judgment, and in the cross cause the ship of tlie plaintiff cannot be arrested, and security has not been given to an- swer judgment therein, the Court may, if it think fit, suspend the proceedings in the principal cause until security has been given to answer judgment in the cross cause, '^f^^c*'^ ^^' The jurisdiction conferred by this Act on the High Court of ^ ^ ^ ' Admiralty may be exercised either by proceedings in retn or by pro- ceedings in personam. 305 PART II. STATUTES RELATING TO THE COUNTY COURTS. COUNTY COURTS ADMIRALTY JURISDICTION ACT, 1868. 31 & 32 Vict. Cap. 71. An Act for conftrring Admiralty Jurisdiction on the County c. C. Aet, CourU, [31m time to time frame a list, to be approved by the |"gatof Judge of the High Court of Admiralty before whom the same shall ^^|ty" be laid by the County Court Judge, and without whose approval it Court shall have no validity, of assessors, of persons of nautical skill and experience residing or having places of business within the district of the County Court, to act as assessors in that Court, and shall cause the list to be published in the '* London Gazette." 15. Everv person named in the list of assessors so framed and ^'^^^^^^ approved shall attend the County Court under such circumatanoes, X2 aaseiiBorB. 308 APPENDIX. C. C. Act, 1868. Removal of asscsHoni. Remunera- tion of ro- giBtrara. Scale of COStH. Power to regi'itrars to adminLster oathfl and tjiko evi- douco. Evidence before registrar receivable in Admin^ty Court As topro- ceedingB in County Court for commence- ment of cause. Limitation of arrest. and in such rotation, and snbjeet to such regulations, and shall receive such fees for his attendance, as general orders shall direct, and for every wilful non-attendance shall be liable, at the discretion of the Court, to a penalty not exceeding five pounds. 16. Every assessor named in such list shall hold his ofBce until a new list of assessors shall have been framed and approved as afore- said, or until he shall resign his appointment 17. The registrars of the County Courts shall be remunenited for their duties in Admiralty causes by receiving for their own use suck fees as general orders shall direct. 18. A scale of costs and charges in Admiralty causes in the County Courts shall be prescribed by general orders. 19. The registrar of a County Court shall have power to administer oaths in relation to any Admiralty cause in a County Court ; and any person who shall wilfully depose or affirm falsely before the registrar in any Admiralty cause shall be deemed to be guilty of perjury, and shall be liable to all the pains and penalties attaching to wilful and corrupt perjury. 20. Evidence taken in any Admiralty cause before the r^^istrar of a County Court, as the Judge of a County Court or general orders shall direct, shall be received as evidence in any other County ( ^ourt, saving all just exceptions ; and the registrar of any County C*ourt shall, for the purpose of the examination of any witnesses within the aistrict of that Court, have all and the like powers and authorities of an examiner of the High Court of Admiralty of Eng- land, nnd evidence taken by him in that capacity shall be received as evidence in the High Court of Admiralty of England, saving all just exceptions. 21. Proceedings in an Admiralty cause shall be commenced — (1.) In the County Court having Admiralty jurisdiction within the district of which the vessel or property to which the cause relates is at the commencement of the proceedings : (2.) If the foregoing rule be not applicable, then m the CounW Court having Admiraltyjurisaiction in the district of which the owner of the vessel or property to which the cause relates, or his agent in England, resides, or if such owner or agent does not reside within any such district, then in the County Court having Admiralty jurisdiction the district whereof is nearest to the place where such owner or ag€bt resides : (3.) If for any reason the last foregoing rule is not applicable or cannot oe acted on, then in such County Court having Admiralty jurisdiction as genen\l orders direct : (4.) In any case in the County Court or one of the Coimty Courts having Admiralty jurisdiction in which the parties by a memorandum, signed hj them or by their attorneys or agents, agree shall have jurisdiction in the cause. 22. In an Admiralty cause in a County Court if evidence be given to the satisfaction of the Judge, or in his absence the registrar of the Court, that it is probable that the vessel or property to whidi the cause relates will be removed out of the jurisdiction of the Court before the plaintiffs claim is satisfied, it shall be lawftil for the said Judge, or in his absence for the registrar, to issue a warrant for the COUNTY COURTS ADMIRALTY JURISDICTION ACT, 1868. 309 arrest and detention of the said vessel or property, nnless or until C. C. Aet, bail to the amount of the claim made in such cause, and to the reason- ' ^^^* able costs of the plaintiff in such cause, be entered into and perfected, according to general orders, by or on behalf of the owner of the vessel or property or his a^nt, or ouier the defendant in such cause ; and, except as in this section expressly provided, there shall be no arrest or detention of a vessel or property in an Admiralty cause in a County Court otherwise than in execution. 23. For the execution of any decree or order of a County Court in Power to an Admiralty cause the Court may order, and the registrar on such p|^^ order may seal and issue, and any officer of any County Coui*t may execute, process according to general orders ; provided that where under such process a vessel or property would or might be sold, then, if the owner of the vessel or property desires that the sale should be conducted in the High Court of Admiralty instead of in the County Court, he shall be entitled, on security for costs being lirst given, and subject and according to such other provisions as general orders direct, to obtain an order of the County Court for transfer of the proceedings for sale, with or without (as the Judge of the County Court thinks fit) the ti'ansfer of the subsequent proceedings in the cause, to the High Court of Admiralty, which Court shall have jurisdiction and all powers and authorities relating thereto accordingly. 24. Such decrees and orders of County Courts in Admiralty causes Rogistea- as general orders shall direct, shall be registered with the registrar of a^^ and County Court judgments in London in such manner as general orders ordem. shall direct. 26. The Court of Passage of the borough of Liverpool shall, upon Concurrent an Order in Council being made which shaJl appoint the County |S the^SSt Court of Lancashire holden at Liverpool to have Admiraltv juris- of raaaago. diction, have the like jurisdiction, powers, and authorities as by that order are conferred on the said County Court ; but nothing herein shall be deemed to enlarge the area over which the jurisdiction of the Court of Passage extends, or to alter the rules and regulations for holding the said Court, or to take away or restrict any jurisdiction, power, or authority already vested in that Court ; and fees received in that Court under this Act shall be dealt with as fees received in that Court under its ordinary jurisdiction. 26. An appeal may be made to the High Court of Admiralty of ^pp^to England from a final decree or order of a County Court in an Admi- Adtaiiraity. ralty cause, and, by permission of the Judge of the County Court, from any interlocutory decree or order therein, on security for costs being first given, and subject to such other provisions as general orders shall direct. 27. No appeal shall be allowed unless the instrument of appeal is '^*™®J^'' lodged in the registry of the High Court of Admiralty within ten *PP*^ days from the date of the decree or order anpealed from, but the Judge of the High Court of Admiralty of England may, on sufficient cause being shown to his satisfaction for such omission, allow an appeal to be prosecuted, notwithstanding that the instrument of appeal has not been lodged within that time. 28. No app^ shall be allowed if, before the decree or order is ^^^°^®^' made, the parties shall have agreed by a memorandum signed by a^nmL 310 APPENDIX. C. C. Aet, 1868. An to appeals to the Queen in Council. Costs of appeaL No appeal unless amount exceeds £!»0. Conduct of sale, Ac, in Court of Admiralty. In certain cases causes maybe transferred by County- Court and appeals made to Court of Admiralty of the Cinque Ports. County Court Acts appUed to Practice, d^c, to be regulated by general ordoFB. Authority for making general orders. them or by their attorneys or agents, that the decree or order shall be final ; and any such agreement need not be stamped, except in respect of any fee imposed by general orders. 29. There shall be no appeal from a decree or order of the High Court of Admiralty of England made on appeal from a Coun^ Ck>urt, except by express permission of the Jaage of the High Oonrt of Admiralty. 30. On an appeal under this Act, when the appellant is nnsacceas- ful, he shall pay the costs of the appeal, unless the Appellate Court shall otherwise direct. 31. No appeal shall be allowed unless the amount decreed or ordered to be due exceeds the sum of fifty pounds. - 32. On an appeal under this Act, the Jud^e of the High Court of Admiralty, if it appears to him expedient that any sale decreed or ordered to be made of the vessel or property to which the cause re- lates should be conducted in the High Cfourt of Admiralty instead of in the County Court from which the appeal is brought, may direct the transfer of the proceedings for sale, with or without the transfer of the subsequent proceedings in the cause, to the High Court of Admiralty, which Court shall have jurisdiction, and all powers and authorities relating thereto accordingly. 33. In all cases which shall arise within the jurisdiction of the Cinque Ports as defined by the Act First and Second George the Fourth, chapter seventy-six, section eighteen, causes may be trans- ferred by the Cuunty Court and appeals made to the Court of Admi- ralty of the Cinque Ports in lieu of the High Court of Admiralty ; and in the case of appeals the instrument of appeal shall be lodged in the registry of the Cinque Ports, and the same discretion vested in the judge official and commissary of the said Cinque Ports Court as is by this Act vested in the Judge of the High Court of Admiralty. 34. This Act shall be read as one Act with so much of the County Courts Act, 1846, and the Acts amending or extending the same, as is now in force. 36. Greneral orders shall be from time to time made under this Act for the purposes in this Act directed, and for regulating the practice and procedure of the Admiralty jurisdiction of the County Courts, the forms of processes and proceedings therein or issuing therefrom, and the days and places of sittings for Admiraltv causes, the duties of the Judges and officers thereof, and the fees to be taken therein. 36. General orders under this Act shall be made by the Lord Chancellor, with the advice and assistance of the Judge of the High Court of Admiralty of England, and, as far as they relate to fees, or to the receipt and expenditure of and accounting for money, with the approval of the Commissioners of her Majesty's TreaJBury. COUNTY COURTS ADMIRALTY JURISDICTION ACT, 1869. 811 COUNTY COURTS ADMIRALTY JURISDICTION AMEND- MENT ACT, 1869. 32 & 33 Vict. Cap. 51. Bb it eoacted by the Queen's most Excellent Majesty, by and with 0. C. Aet, the advice and consent of the Lords Spiritual and Temporal, and 1809. Commons, in this present Parliament assembled, and by tiie authority of the same, as follows : 1. This Act may be cited as the County Courts Admiralty Juris- ^<^ title. diction Amendment Act, 1869, and shall be read and interpreted as one Act with the County Courts Admiralty Jurisdiction Act, 1868. 2. Any County Court appointed or to be appointed to have Admi- Extenaion ralty jurisdiction shall have jurisdiction, and all powers and authori- tion^OTer^" ties relating thereto, to try and determine the following causes : ahiiw and (1.) As to any claim arising out of any affreement made in relation gooda. to the use or hire of any ship, or m relation to the carriaffo of goods in any ship, and also as to any claim in tort m respect of goods carried in any ship, provided the amount claimed does not exceed three hundred pounds : (2.) As to any cause in respect of any sucn claim or claims as I' portias aforesaid, but in which the amount claimed is beyond the tS'^Si^&t^ amount limited as above mentioned, when the parties agree, claims of by a memorandum signed by them or by their attorneys ^J^JJ^ ^^y or agents, that any County Court having Admiralty juris- be deter- diction, and specified in the memorandum, shall have juris- mined by diction. CoSrt? 3. The jurisdiction conferred by this Act and by the County Courts proceedings Admiralty Jurisdiction Act, 1868, may be exercised either by pro- in rem or in ceedings in rem or by proceedings in personam. jxnonarn. 4. The third section of the County Courts Admiralty Jurisdiction Amendment Act, 1868, shall extend and apply to all claims for damage to ships, gi ^2 vict whether by collision or otherwise, when the amount claimed does not c. 71. exceed three hundred pounds. 5. In any Admiralty or maritime cause the Judge may, if he think fS!?i'^«. fit, or on the request of either party, be assisted by two mercantile Sf^^en^n- assessors ; and all the provisions of the County Courts Admiraltv tuo assee- Jurisdiction Act, 1868, with reference to nautical assessors, shall ^^ apply to the appointment, approval, summoning, and remuneration of such mercantile assessors. 6. The assessor of the Court of Passage of the borough of Liver- ^j^° ^j pool shall have power from time to time to make general rules and couHof^ orders, for regulating the practice and procedure of the Admiralty Passage to and maritime jurisdiction in the said Court, and for other purposes ^^^^ mentioned in section thirty-five of the County Courts Admiralty rules and Jmisdiction Act, 1868 ; and any general rules and orders already orden, made or hereafter to be made by the said assessor for any of the tmrposes aforesaid shall be of full force and effect as if the same had Deen made under this or the aforesaid Act 7. This Act shall come into operation on the first day of September mXrofAct one thousand eight hundred and sixty-nine. 312 APPENDIX. THE COUNTY COURTS ACT, 1875. 38 & 39 Vict. Cap. 60. C. C. Aet, 10. There shall be no appeal from a decree or order of the High 1876. Court of Admiralty of England made on appeal from the Coanty Court when such decree or order affirms the judgment of the County Court, except by express permission of the Judge of the High Court of Admiralty. When upon an appeal the High Court of Admiralty alters the judgment of the County Court no leave to appeal to ber Majesty in Council shall be necessary. 11. When an Admiralty cause has been heard in the County Court with the assistance of nautical assessors, elder brethren of the Trinity House shall be summoned to assist on the hearing of an appeal by the High Court of Admiralty, if either party shall require the same and the Judffe of the High Court shall be of opinion that the assistance of the elder urethren is necessary or desirable. PART III. VICE-ADMIRALTY COURTS ACT, 1863. 26 & 27 Vict. Cap. 24. Viee-Ad. C. 1. This Act may be cited for all purposes as the " Vice- Admiralty Aet, 1868. Courts Act, 1863.^' rt title " Vice-Admiralty Court *' shall mean any of the existing Vice- intoTDreta- Admiralty Courts enumerated in the schedule marked A tum^ hereto annexed, or any Vice- Admiralty Court which shall t«rma. hereafter be established in any British possession : *^ Ship '* shall include eyery description of vessel used in naviga- tion not propelled by oars only, whether British or foreign : '^ Cause " shall include any cause, suit, action or other proceed- ing instituted in any Vice-Admiralty Court. Saving tho 7. Nothing in this Act contained shall be taken to affect the SrSdi^- power of the Admiralty to appoint any Vice-Adnural, or any Judge, nJty. registrar, marshal, or other officer of any Vice- Admiralty Court, as heretofore, by warrant from the Admiralty, and by letters patent issued under seal of the High Court of Admiralty of England. Jurisdiction 10. The matters in respect of which the Vice-Admindty Courts Adm^ty sses8ion at the time of the work being done. 11. The Vice- Admiralty Courts shall also have jurisdiction— 5*^''*'''** (1.) In all cases of breach of the regulations and instructions Admimlt}* relating to her Majesty's navy at seti : Court». (2.) In all matters arising out of droits of Admiralty. Id. Nothing contained in this Act shall be construed to takeaway ^^^^ ^ or restrict the jurisdiction conferred upon any Vice- Admiralty Court exutiiig by any Act of Parliament in respect of seizures for breach of the juriwiic- revenue, customs, trade, or navigation laws, or of the laws relating to ^^'^' the abolition of the slave trade, or to the capture and destruction of pirates and piratical vessels, or any other jurisdiction now lawfully exercised by any such Court, or any jurisdiction now lawfully exer- cised by any other Court within her Majesty's dominions (a). 13. The jurisdiction of the Vice- Admiralty Courts, except where a* to it is expressly confined by this Act to matters arising within the SJj^i^. possession in which the Court is established, may be exercised, yondUmits whether the cause or right of action has arisen within or beyond ®' ^^oiony. the limits of such possession. 14. Her Majesty may, by order in Council, from time to time HerMajoaty establish rules touching the practice to be observed in the Vice- S^^SftSiah Admiralty Courts, as also tables of the fees to be taken by the and alter officers and practitioners thereof for all acts to be done therein, and "J^®* •"*<* may repeal and alter the existing and all future rules and tables of fees.^ ^ fees, and establish new rules and tables of fees in adiiition thereto, or in lieu thereof. 15. A copy of any rules or tables of fees which may at any time ^Vj®**^*^ be established aliall be laid before the House of Commons within fees to?xj three months from the establishing thereof, or if Parliament shall laid before not be then sitting, or if the session shall terminate within one *^^jJJjJJ{JJ ^' month from that date, then within one month after the commence- ment of the next session. 16. The rules and tables of fees in force in any Vice- Admiralty '^^^. Court shall, as soon as possible after they have been received in the ^^ rei-or^a British possession in which the Court is established, be entered by of the the registrar in the public books or records of the Court, and the ^'o"*^*- books or records in which they are so entered shall at all reasonable (a) See Appellate Jurisdiction, 1876, 39 &, 40 Vict. c. 59, s. 23. 314 APPENDIX. Establiflhed fees to be the only fees taken. Taxation may be revised by the High Court of Admiralty. Registrar may ad- minister oaths. As to the hearing of cross causes. Yiee-Ad. C. times be open to the inspection of the practitioners and suitors in the Act, 1868. cemt *^ *^ *- To be hung 1*^* -^ ^VJ ^^ ^he mles and tables of fees in force in any Vice- up in Court, Admiralty Court shall be kept constantly hnng np in some oon- ^^ spicnous place as well in the Court as in the office of the reffistrar. 18. The fees established for any Vice-Admiralty Court shally after the date fixed for them to come into operation, be the only fees which shall be taken by the officers and practitioners of the Court 10. Any person who shall feel himself ag^eved by the charges of any of the practitioners in any Vice- Admiralty Court, or by the taxation thereof by the officers of the Court, may apply to the Hich Court of Admiralty of England to have the charges taxed, or the taxation thereof revised. 20. The registrar of any Vice- Admiralty Court shall have power to administer oaths in relation to any matter depending in the Court ; and any person who shall wilfully swear falsely in any proceeding before the refiistrar, or before anv other person authorised to adminis- ter oaths in tne Court, shall be deemed ^ilty of perjury, and shall be liable to all the penalties attaching to wilful and corrupt peijuir. 21. If a cause of damage by collision be instituted in any Vice- Admiralty Court, and the defendant institute a cross cause in respect of the same collision, the Judge may, on application of either party, direct both causes to be heard at the same time and on tho same evidence ; and if the ship of the defendant in one of the causes has been arrested, or security given by him to answer judgment, but the ship of the defendant in the other cause cannot be arrested, and security has not been given to answer judgment therein, the Court may, if it think fit, suspend the proceedings in the former cause until security has been given to answer judmnent in the latter cause. 22. The appeal from a decree or order of a Vice-Admiralty Court lies to her Majesty in Council; but no appeal shall be allowed, save by permission of the Judge, from any decree or order not having the force or effisct of a definitive sentence or final order. 23. The time for appealing from any decree or order of a Vice- Admiralty Court shall, notwithstanding any existing enactment to the contrary, be limited to six months from the date of the decree or order appealed from; and no appeal shall be allowed where the petition of appeal to her Majesty shall not have been lodged in the registry of the High Court of Admiralty and of appeals within that time, unless her Majesty in Council shall, on the report and recom- mendation of the Judicial Committee of the Privy Council, be pleased to allow the appeal to be prosecuted, notwithstanding that the petition of appeal has not been lodged within the time prescribed. ^a^^' ^' ^ enumerated in the schedule hereto annexed marked SaTing ruiea ^ ^^^ hereby repealed, to the extent therein mentioned, but the flstabUshed repeal thereof shall not affect the validity of any rules, orders, regula- W^^c. 61^ tions, or tables of fees heretofore established and now in force, in ' ' pursuance of the Act of the second and third William the Fourth, chapter fifty-one ; but such rules, orders, regulations, and taUes of fees shall continue in force until repealed or altered under the pro- visions of this Act. No appeal save from final sen- tence or order. Appeal to be made 'Within six months. VICE-ADMIRALTY OOUBTS ACT, 1863. 315 SCHEDULE B. l^M-Ad.0. Aet, 1868. ACTB AND PaSTB OF ACIB RkPKALED. Reference to Act 56 Geo. IIL c. 82. 5 Geo. IV. c. 113. 2&3Will.IV.c.51. 6 & 7 Vict. c. 38. 17 A 18 Vict. c. 87. Title of Act An Act to render valid the Judicial Acts of SnrrogateB of Vice- Admi- ralty Courts abroad, during Vacan- cies in Office of Judges of such Courts. An Act to amend and consolidate the Laws relating to the Abolition of the Slave Trade. An Act to regulate the Practice and the Fees in the Vice-Admiralty Courts abroad, and to obviate doubts as to their Jurisdiction. An Act to make further regulations for facilitating the hearing A ppeals and other matters by the Judicial Committee of the Privy CounciL An Act for establishing the Validity of certain Proceedings in Her Majesty's Court of Vice-Admi* miralty in Mauritius. Extent of BepeaL The whole Act, save as regards Her Majesty's Possessions in Indiik Section 29, save as above. The whole Act, save as above. Section 11, so far as it relates to Appeals from Vice • Admiralty Courts, save as above. The whole Act. SI 6 APPENDIX. PART IV. SECTIONS OF MERCHANT SHIPPING ACTS AS TO (1) Salvage, . 8. Aet, 1851 S. 182. Htipiilation by Boamau to Abandon right to fuUvage iiioperativo. Salvage in respect of services rendered in the United Kingdom. BalvBgefor life may be paid by Board of Trade out of Mercantile Marine Fund. Disputes as THE MERCHANT SHIPPING ACT, 1854. 17 & 18 Vict. c. 104. . . . every stipulation by which any seaman consents . . . to abandon any rignt which he may have or obtain in the nature of salvage shall be wholly inoperative. And see 25 & 26 Vict., c 63, s. 18. SALVAGE IN THE UNITED KINGDOM. 458. In the following cases ; (that is to say,) Wlienever any ship or boat is stranded or otherwi.qe in distress, on the shore of any sea or tidal water situate within the limits of the United Kingdom, and services rendered by any person, (1.) In assisting such ship or boat ; (2.) In saving tlie lives of the persons belonging to such ship or boat ; (3.) In saving the cargo or apparel of such ship or boat, or any portion thereof. And whenever any wreck is saved by any person other than a receiver within the United Kingdom ; There shall be payable by the owners of such ship or boat, cargo, apparel, or wreck, to the person by whom such services or any of them are rendered, or by whom such wreck is saved, a reasonable amount of salvage, together with all expenses properly incurred by him in the performance of such services or the saving of such wreck, the amount of such salvage and expenses (which expenses are hereinafter included under the term salvage) to be determined in case of dispute in manner hereinafter mentioned. 459. Salvage in respect of the preservation of the life or lives of any person or persons belonging to any such ship or boat as aforesaid shall be pa>able by the owners of the ship or boat in priority to all other claims for salvage ; and in cases where such ship or boat is destroyed, or where the value thereof is insufficient, after payment of the actual expenses incurred, to pay the amount of salvage due in respect of any life or lives, the BcMird of Trade may in its discretion award to the salvors of such life or lives out of the Mercantile Marine Fund such sum or sums as it deems fit, in whole or part satisfaction of any amount of salvage so left unpaid in respect of such life or lives. 460. Disputes with respect to salvage arising witbia the boundaries MERCHANT SHIPPING ACT, 1854 (SALVAGE), 317 of the Cinque Porta shall be determined in the manner in which the X. 8. Act, same have hitherto been determined; but whenever any dispute l^^ arises elsewhere in the United Kingdom between the owners of any tosaivago such ship, boat, cargo, apparel, or wreck as aforesaid, and the salvors, how to bo* as to the amount of salvage, and the parties to the dispute cannot *^^^^ agree as to the settlement thereof by ai-bitration or otherwise, Then if tlie sum claimed does not exceed two hundred pounds, Such dispute shall be referred to the arbitration of any two justices of the peace resident as follows ; (that is to say,) In case of wreck, resident at or near the place where such wi*eck is found : In cases of services rendered to any ship or boat, or to the persons, cargo, or apparel belonging thereto, resident at or near the place where such ship or boat is lying, or at or near the first port or place in the United Kingdom into which such ship or boat is brought after the occurrence of the accident by reason whereof the claim to salvage arises : But if the sum claimed exceeds two hundred pounds. Such dispute may, with the consent of the parties, be referreri 111 '>tfr dctcJitiou to for ii'iui- tioii.il h'A\ illy in IIjc c i-i: of ^liij M «.wncd ]»y jK-i-xus n <,'lciit. otit of li< r M .jr-ty'rt cioiiiiuioiis. Docr.Tiit'iits to Irc Hcnt to England. WTicm tho VK)n(I HhiiU bind. rvtrrt in which it is to iMJfKJJudi- cutod (een or is alleged to have been incurred by any owner in respect of loss of life, personal in- MERCHANT SHIPPING ACT, 1854 (DAMAGE). 327 jury, or loss of or damage to ships, boats, or ffoods, and several daims X. S. Act, are made or apprehended in respect of such liaHlity, then, subject l^^ to the right hereinbefore given to the Board of Trade of recovering claims being damages in the United Kingdom in respect of loss of life or personal mado on injury, it shall be lawful in England or Ireland for the Hign Court ^"°^ ®^ of Chancery, and in Scotland for the Court of Session, and in any ^ British possession for any competent Court to entertain proceedings at the suit of any owner for the purpose of determining the amount of such liability subject as aforesaid, and for the distribution of such amount ratcably amongst the several claimants, with power for any such Court to stop all actions and suits pending in anv other Court in relation to the same subject-matter; and any proceeding entertained by such Court of Chancery or Court of Session, or other competent Court, may be conducted in such manner and subject to such regula- tions as to making any persons interested parties to the same, and as to the exclusion of any claimants who do not come in within a certain time, and as to requiring security from the owner, and as to payment of costs, as the Court thinks just. 516. All sums of money paid for or on account of any loss or Money paid damage in respect whereof the liability of the owners of any ship hJJi^tobo^* is limited by the ninth part of this Act, and all costs incurred in accounted relation thereto, may be brought into account among part-owners ^rbetween of the same ship in the same manner as money disbursed for the i*"®^^®"' use thereof. 616. Nothing in the ninth part of this Act contained shall be Saving construed— ^^^• To lessen or take away any liability to which any master or seaman, being also owner or part-owner of the ship to which he belongs, is subject in his capacity of master or seaman ; or To extend to any British ship not being a recognised British ship within the meaning of this Act. 627. Whenever any injury has in any j)art of the world been ?®Y®^ °? caused to any property belonging to her Majesty, or to any of her court of Majesty's subjects, by any foreign ship, if at any time thereafter such Record or ship is found in any port or river of the United Kingdom, or within ^^^JSt*^ three miles of the coast thereof, it shall be lawful for the Judge of foreign ship an^ Court of Becord in the United Kingdom, or for the Judge of the t*^* has High Court of Admiralty, or in Scotland the Court of Session, or the daSago!^ sheriff of the county within whose jui-isdiction such ship may be, upon its being shown to him by any person applying summarily that such injury was probably caused by the misconduct or want of skill of the master or mariners of such ship, to issue an order directed to any ofScer of customs or other officer named by such Judge, requiring him to detain such ship until such time as the owner, master, or con- signee thereof has made satisfaction in respect of such injury, or has given security, to be approved by the Judge, to abide the event of any action, suit, or other legal proceeding that may be instituted in respect of such injury, and to pay all costs and damages that may be awarded thereon ; and any officer of customs or other officer to whom such order is directed shall detain such ship accordingly. 628. In any case where it appears that before any application can Power in be made under the foregoing section such foreign ship will have ^^^, 328 AFPENDDL X. 8. Aet» departed beyond the limits therein mentioned, it shall be lawful for ^^^ any eommissioned officer on fall pay in the military or naval service ^^^~ of her Majest}', or any British officer of costoms, or nny British con- fihip \,efrre solar officer, to detain such ship until such time as will allow such »I'T;j|^^^*^i> application to be made and the result thereof to be communicated to 'udVe.^^ ^^ ) ^^^ ^^ ^^^'^ officer shall be liable for any costs or damages in respect of such detention nnless the same is proved to have been made without reasonable grounds. Y-ieudmt to ^'^* ^^ *°^ action, suit, or other proceeding in relation to such h^it iufiuch injury, the person so giving security as aforesaid shall be made ciuitiA. defendant or defender, and shall be staged to be the owner of the ship that has occasioned such damage ; and the production of the order of the Judge made in relation to such security shall be conclusive evidence of the liability of such defendant or defender to such action, suit) or other proceeding. THE MERCHANT SHIPPING ACT, 1862. 25 & 26 Vict. c. 63. Enactment 26. On and after the 1st day of June, one thousand eight hundred t\ ^^}^ ^^^ sixty-three, or such later day as may be fixed for the purpose by cvndn^^' order in Council, the regulations contained in the table marked 0 in lights, fo? the schedule hereto shall come into operation and be of the same ^lUint' '^^ force as if they were enacted in the body of this Act ; but her Majesty nikH in may from time to time, on the joint recommendation of the Admi- T^ u^^ c^' ralty and the Board of Trade, by order in Council, annul or modify any of the said regulations, or make new regulations in addition thereto or in substitution therefor ; and any alterations in or additions to such regulations made in manner aforesaid shall be of the same force as the regulations in the said schedule. RcgiiUtionB 26. The Board of Trade shall cause the said regulations, and any UflbcKL ^^ alterations therein or additions thereto hereafter to be made, to be printed, and shall furnish a copy thereof to any owner or master of a ship who applies for the same ; and production of the '* Gazette " in which any order in Council containing such regulations or any alte- rations therein or additions thereto is published, or of a copy of such regulations, alterations, or additions, signed or purporting to be signed by one of the seci*etaries or assistant secretaries of the Bixird of Tradey or sealed or purporting to be sealed with the seal of the Board of Trade, shall be sufficient evidence of the due making and pnrport of such regulations, alterations, or additions. Own cm and 27. All owncTs and masters of ships shall be bound to take notice Jl^j^'^^^^j*^^ of all such regulations as aforesaid, and shall, so long as the same obey them, coutiuue iu f orce, be bound to obey them, and to carry and exhibit no other lights, and to use no other fog signals than such as are re- quired by the said regulations ; and in case of wilful de&ult, the master or the owner of the ship, if it appear that he was in sudi fault, shall, for each occasion upon which such regulations are in- fringed, be deemed to b^ guilty of a miademeanour. KEBCHANT SHIPPING ACT, 1862 (DAMAGE). 329 28. In case any damage to person or property arises from the non- K. 8. Aot, observance by any ship of any regulation made by or in pursuance of 1868. this Act, such damitfe shall be deemed to have been occasioned by Breachesof tlie wilful default of the person in charge of the deck of such ship at rcgiiiationa the time, unless it is shown to the satisfaction of the Court that the ^..^^^ circumstances of the case made a departure from the regulation default of necessary. iHjrson in 8L Any rules concerning the lights or signals to be carried by *^^"^*'' vessels navigating the waters of any harbour, river, or other inland hj^boura navigation, or concerning the steps n)r avoiding collision to be taken under Local by such vessels, which have been or are hereafter made by or under Acta to the authority of any Local Act, shall continue and be of full force and ^^q^ effect notwithstanding anything in this Act or in the schedule thereto contained. LIABILITT OF SHIPOWNERS (PABT IX. OF MERCHAKT SHIFFINO ACT, 1854). 54. The owners of any ship, whether British or foreign, shall not, Shipowners' in cases where all or any of the following events occur without their jl^^^Si^^ actual fault or privity ; (that is to say,) ™* (1.) Where any loss of life or personal injury is caused to any prson being carried in such ship ; (2.) Where any damage or loss is caused to any goods, mer- chandise, or other things whatsoever on board any such ship ; (3.) Where any loss of life or personal injury is by reason of the improper navigation of such ship as aforesaid caused to auy person caiTied in any other ship or boat ; (4.) Where any loss or damage is by reason of the improper navi- gation of such ship as aforesaid caused to any other ship or boat, or to any goods, merchandise, or other things what- soever on board any other ship or boat ; be answerable in damages in respect of loss of life or personal injury, either alone or together with loss or damage to ships, boats, goods, merchandise, or other things, to an aggregate amount exceeding fifteen pounds for each ton of their ship^s tonnage ; nor in respect of loss or damage to ships, goods, merchandise, or other things, wnether there be in addition loss of life or personal injury or not, to an aggre- gate amount exceeding eight pounds for each ton of the ship's tonnage ; snch tonnage to be the registered tonnage in the case of sailing ships, and in the case of steam ships the gross tonnage without deduction on account of engine room : In the case of any foreign ship which has been or can be measured according to British law, the tonnage as ascertained by such measure- ment shall, for the purposes of this section, be deemed to be the ton- nage of such ship : ' In the case of any foreign ship which has not been and cannot be measured under British law, the surveyor-general of tonnage in the United Kingdom, and the cliief measuring officer in any British pos- session abroad, shall, on receiving from or by direction of the Court hearing the case such evidence concerning the dimensions of the ship as it may be found practicable to furnish, gtve a certificate under his 330 APPENDIX. X. 8. Aet, hand, stating what would in his opinion have been the tonnage of 1862. such ship if she had been duly measured according to British law, and the tonnage so stated in such certificate shall, for the purposes of this section, be deemed to be the tonnage of such ship. Proof of 56. In any proceeding under the 506th section of the principal onboard tort '^^^ ^^ ^^^ "^^^ amending the same against the owner of any ship or Bhip. share therein in respect of loss of life, the master's list or the dupli- cate list of passengers delivered to the proper officer of customs under the 16th section of" The Passengers Act, 1854," shall, in the absence of proof to the contrary, be sufficient proof that the persons in respect of whose death any such prosecution or proceeding is instituted were passengers on board such ship at the time of their deaths. ARRANGEMENTS CONCERNING LIGHTS, SAILING RULES, SALVAGE AKU MEASUREMENT OF TONNAGE IN THE CASK OF FOREIGN SHIPS. Foreign 67. Whenever foreign ships are within British jurisdiction, the Si?Lh* regulations for preventing collision contained in Table (C) in the luriBdictton schedule to this Act, or such other regulations for preventing collision to be subject as are for the time being in force under this Act, and all provisiona tiomfin*^ of this Act relating to such regulations, or otherwise relatmg to col- Table (C) lisions, shall apply to such foreign shi^ ; and in any cases arising in In Bchedule. ^ny British Court of Justice concemmg matters liappening wiuiin British jurisdiction, foreign ships shall, so far as regards such regula- tions and provisions, be treated as if tney were British ships. Reguio- 58. Whenever it is made to appear to her Majesty that the ^d'^^tod b**^ government of any foreign country is willing that the regulationa a foreign ^ ^^^ preventing collision contained in Table (C) in the schedule to country, this Act, or such other regulations for preventing collision as are for applied to ^^^® *^™^ being in force under this Act, or any of the said regulations, its ships on or any provisions of this Act relating to collisions, should apply to the high the ships of tins country when beyond the limits of Britiph juris- "^'* diction, htr Majesty may, by order in Council, direct that such regu- lations, and all provisions of this Act which relate to such regula- tions, and all such other provisions as aforesaid, shall apply to the ships of the said foreign country, whether within Britisii jurisdic- tion or not. MERCHANT SHIPPING ACT, 1873. 36 & 37 Vict. c. 85. After colli- 16. In every case of collision between two vessels, it shaU be the vOTsdto* duty of the master or person in charge of each vessel, if and so far stay by the 88 be cau do SO without danger to his own vessel, crew, and paa- other. sengers (if any), to stay by the other vessel until he has ascertained that she has no need of further assistance, and to render to the other vessel, her master, crew, and passengers (if any) such assistance as may be practicable., and as may be uecessaiy in order to save them from any damage caused bv the collision ; and also to give to the master or person in charge of the other vessel the name of his MEKCHANT SHIPPING ACT, 1854 (WAGES). 331 own vessel and of her port of registry, or of the port or place to X. 8. Act, which she belongs, and also the names of the ports or places from 1B73. which and to which she is bound. If he fails so to do, and no reasonable cause for such failure is shown, the collision shall, in the absence of proof to the contrary, be deemed to be caused by his wrongful act, neglect or default. 17. If, in any case of collision, It is proved to the Court before ^^^*^^ which the case is tried that any of the reeulatious for preventing reguSStona collision contained in or made under the Merchant Shipping Acts, *<> ^ 1854 to 1873, have been infringed, the ship by which such regulation f^"^ ^ has been infringed shall be deemed to be in fault, unless it is shown to the satisfaction of the Court that the circumstances of the case made departure from the regulation necessary. (3) Wages. [THE MERCHANT SHIPPING ACT, 1854. 17 & 18 Vict. c. 104. PART III. MASTERS AND SEAMEN. 149. Tlie master of every ship, except ships of less than eighty Agreements tons registered tonnage exclusively employed in trading between ^^^!!^® different ports on the coasts of the United Kingdom, shall enter into men, con- an agreement with every seaman wliom he Ciirries to sea from any taining port in the United Kingdom as one of his crew in the manner herein- tfctSSJ*"^ after mentioned; and every such agreement shall be in a form sanctioned by the Board of Trade, and shall be dated at the time of the first signature thereof, and shall be signed by the master before any seaman signs the same, and shall contain the following par- ticulars as terms thereof; (that is to say,) (1.) The nature, and, as far as practicable, the duration of the intended voyage or engagement : (2.) The number and description of the crew, specifying how many are engaged as sailors : (3.) The time at which each seaman is to be on board or to begin work: (4.) The capacity in which each seaman is to serve : (5.) The amount of wages which each seaman is to receive : (6.) A scale of the provisions which are to be furnished to each seaman : (7.) Any regulations as to conduct on board, and as to fines, short allowance of provisions, or other lawful punishments for misconduct, which have been sanctioned by the Board of Trade as regulations proper to be adopted, and which the pai*ties agree to adopt. 832 APPENDIX, M. 8. Aet, 1864. Proviso as to forma for colonial shtpe. For foreign- going bhiits, such iigreo- xneuts, wheu made Intlio Uuitod Kingdom, except in Bpccfol casefl, to be mado before and attested by a enlpplng master. To be in duplicate. Provision for Bub- Btitutes. FoFcign- ^olu^ allips making short Yoyages may have nm- ningagreo- mcuts. Ab(1 every such ngreement shall be so framed as to admit of stipu- lations, to be adopted at the will of the master and seamen in each case, as to advance and allotment of wages, and may contain any other stipulations, which are not contrary to law ; provided that if the master of any ship belonging to any British possession has an agreement with his crew made in due form according to the law of the possession to which such ship belongs or in which her crew were engaged, and engages single seamen in the United Kingdom, such seamen may sign the agreement so made, and it shall not be necessary for them to sign an agreement in the form sanctioned by the Board of Trade. 150. In the case of all foreign-going ships, in whatever part of her Majesty's dominions the same are registered, the following rules shall be observed with respect to agreements ; (that is to say,) (1.) Every agreement made in the United Kingdom (except in such cases of agreements with substitutes as are hereinafter specially provided for) shall be signed by each seaman in the presence of a shipping master : (2.) Such shipping master shall cause the agreement to be read over and explained to each seaman, or otherwise ascertain that each seaman understands the same before he signs it» and shall attest each signature : (3.) When the crew is first engaged the agreement shall be signed in duplicate, and one part shall be retained by the shipping master, and the other part shall contain a special place or form for the descriptions and signatures of substitutes or persons engaged subsequently to the first departure of the ship, and shall be delivered to the master : (4.) In the case of substitutes engaged in the place of seamen who have duly signed the agreement, and whose services are lost within twenty-four hours of the ship's putting to sea, by death, desertion, or other unforeseen cause, the engagement shall, when practicable, be made before some shipping master duly appointed in the manner hereinbefore specified ; and whenever such last-mentioned engagement cannot be so made, the master shall, before the ship puta to sea, if practicable, and if not, as soon afterwiirds as pos- sible, cause the agreement to be read over and explained to the seaman ; and the seaman shall thereupon sign the same in the presence of a Witness^ who shall attest their signatures. 161. In the case of foreign-going ships making voyages averaging less than six months in duration, running agreementa with the crew may be made to extend over two or more voyages, so that no such agreement shall extend beyond the next following thirtieth day of June or thirty-first day of December, or the first arrival of the ship at her port of destination in the United Kingdom after such date, or the discharge of cargo consequent upon such airival ; and every person entering into such agreement, whether engaged upon the first commencement thereof or otherwise, shall enter into and sign the same in the manner hereby required for other foreign- going ships ; and every person engaged thereunder, if discharged in the United Kingdom, shall be discharged in the manner hereby MERCHANT SHIPPING ACT, 1854 (WAGES), 838 required for the discharge of seamen belonging to other foreign* It 8. Aot, going ships. 1864. 162. The master of every foreign-going ship for which such a Engftgement running agreement as aforesaid is made shall, upon every return to and dis- any port in the United Kingdom before the final termination of the charge of agreement, discharge or engage before the shipping master at such ^!^Sm- port any seamen whom he is required by law so to discharge or time, engage, and shall upon every such return endorse on the agreement n statement (as the case mcay be) either that no such discharges or engagements have been made or are intended to be made before the ship again leaves port, or that all such discharges or engagements have been duly made as hereinbefore required, and shall deliver the agreement so endorsed to the shipping master ; and any master who wilfully makes a false statement in such endorsement shall incur a penalty not exceeding twenty pounds ; and the shipping master shall also sign an endorsement on the agreement to the effect that the provisions of this Act relating to such agreement have been com- plieu with, and shall re-deliver the agreement so endorsed to the master. 153. In cases in which such running agreements are made, the DtipUcatos duplicate agreement retained by the shipping master upon the first jl^^S£ engagement of the crew shall either be transmitted to the registrar how to bo general of seamen immediately, or be kept by the shipping master ^®*^* ^t^ until the expiration of the agreement, as the Board of Trade directs. 154. For the purpose of determining the fees to be paid upon the Foos to bo eng^ement and discnarge of seamen belonging to foreign-going ships Jj^^^^'"^'* which have running agreements as aforesaid, the crew shall be con- ngreementa. sidei'ed to be engaged when the agreement is first signed, and to be discharged when the agreement finally terminates, nnd all inter- mediate engagements and discharges shall be considered to be en- gagements and discharges of single seamen. 155. In the case of home-trade ships, crews or single seamen may, Tn home- if the master thinks fit, be engaged before a shipping master in the ^^^^^^ manner hereinbefore directed with respect to foreign-going ships ; toi»ratorcd and in every case in which the engagement is not so made, the *"**» i^jforo a master shall, before the ship puts to sea, if practicable, and if not, as maitc"or sson afterwards as possible, cause the agreement to be read over and othor explained to each seaman, and the seaman shall thereupon sign the ^*^*^"' same in the presence of a witness, who shall attest his signature. 156. In cases where several home-trade ships belong to the same Special owner, the agreement with the seamen may, notwithstanding any- JST^^"** thing herein contained, be made by the owner instead of by the trade shipn master, and the seamen may be engaged to serve in any two or more '^^o^fi:*^ *<> of such ships, provided that the names of the ships ancl the nature uf ownon. the service are specified in the agreement ; but with the foregoing exception all provisions herein contained which relate to ordinary agreements for home-trade ships shall be applicable to agreements made in pursuance of this section. 163. Every erasure, interlineation, or alteration in any such f^t^**??* agi*eement with seamen as is required by the third part of this Act maotm^ (except additions so made as hereinbefore directed for shipping sub- attested to fititutes or persons engaged subsequently to the first dei)artm*e of ^^e^wSi the ship) shall be whdly inoperative, unless proved to nave been the oQnaent 334 AFPEXDDL 11.8. AeL 1864. of ill S'-'amen not to }»: [^('lud a^ccincnt. So I men dis- ch ir^ed tx,f')rc voy u'o to h.'iV(.- (••>m- |X;aA Atiou. Re^fiilationB OM to allotment nutes. Allotment notei may be Hiicfl on Hummarily by certain X^crHons and under certain con- ditions. made with the consent of all the persons interested in such erasure, interlineation, or alteration by the written attestation (if made in her Majesty's dominions^ of some 8liii>j;ing master, justice, officer of custom.-, or other public functionary, or if made out of her Majesty's dominions) of a Briti«li consular officer, or wht^re there is no such officer, of two respectable Briti-h merchants. 165. Any B«aman may bring forth evidence to prove the contents of any agreement or otherwise to supy>ort his case, without producing or giving notice to ]»roduce tlie agreement or any copy thereof. 1(37. Any seaman who has si-jue-l an agreement, and is afterwards discharged before the commencemt'nt of the voyage, or before one month's wages are earne either by the offi- cial statement of the change in the crew caused by his absence made and signed by the master, as by this Act is required, or by a duly certifi^ copy of some entry in the official log-book to the effect that he has left the ship, or by a credible letter from the master of the ship to the same effect, or by such other evidence, of whatever descrip- tion, as the Court in its absolute discretion considers sufficient to show satisfactorily that the seaman has ceased to be entitled to the wages out of which the allotment is to be paid : provided that the wife of any seaman who deserts her children, or so misconducts her self as to be undeserving of support from her husband, shaU thereupon MERCHANT SHIPPING ACT, 1854 (WAGES). 885 forfeit all right to farther payments of any allotment of his wages K. 8. Aet, which has been made in her ravoar. l^5i, DISCHARGE AND PATMENT OF WAGES. 170. In the case of all British foreign-going ships, in whatever part Diflchaiigo of her Majesty's dominions the same are registered, all seamen dis- ^^J^. charged in the United Kingdom shall be discharged and receive their going ahip wages in the presence of a shipping master duly appointed under this J°)^ °^° Act, except in cases where some competent Court otherwise directs : shipping and any master or owner of any such ship who discharges any sea- maater. man belonging thereto, or, except as aforesaid, pays his wages within the United Kingdom in any other manner, shall incur a penalty not exceeding ten poimds ; and in the case of home-trade ships seamen may, if the owner or master so desires, be discharged and receive their wages in like manner. 171. Every master shall, not less than twenty-four hours before ^^^ ^ paying off or discharging any seaman, deliver to hira, or, if he is to be aosoimt of dischu^ed before a snipping master, to such shipping master, a full wages, and true account in a form sanctioned by the Board of Tnide of his wages and of all deductions to be made therefrom on any account whatever, and in default shall for each offence iucur a penalty not exceeding five pounds ; and no deduction from the wages of any sea- roan ^except in respect of any matter happening after such delivery) shall ue allowed unless it is included in the account so delivered ; and the master shall during the voyage enter the various matters iu respect of which such deductions are made, with the amounts of ihe respective deductions, as they occur, in a book to be kept fur that purpose, and shall, if required, produce such book at the time of the payment of wages, and also upon the hearing before any competent authority of any complaint or question relating to such payments. 173. Every shipping master shall hear and decide any question Shipping whatever between a master or owner and any of his crew which both SSd/^^ Earties agree in writing to submit to him ; and every award so made tiona which y him shall be binding on both parties, and shall in any legal pro- ^^JJ "^®' ceeding which may be taken in the matter before any Court of jus- tice be deemed to be conclusive as to the rights of the parties ; and no such submission or award shall require a stamp ; and any docu- ment purporting to be such submission or award shall be priind facie evidence thereof. 175. The following rules shall be observed with respect to the Settlement settlement of wages ; (that is to say), ° wagea. (1.) Upon the completion before a shipping master of any dis- ^g^^^ charge and settlement, the master or owner and each sea- boforoand man shall respectively in the presence of the shipping mas- jj*®^i?^^y ter sign in a form sanctioned by the Board of Trade a mutual JaL^f * release of all claims in respect of the past voyage or engage- ment, and the shipping master shall also sign and attest it, and shall retain and transmit it as herein directed : (2.) Such release so signed and attested shall operate as a mutual To be di«- discharge and setUement of all demands between the parties ^^^^^'^ thereto in respect of the past voyage or engagement : (3.) A copy of such release certified under the hand of sach ship- ^J^|^ 886 APPENDIX. X. B. Aet, 1864. No other receipt to I30 a discharge. Voucher to be given to xuiiKtor, aud to Ixj evidence. Right to wages and proviuions, when to begin. Seamen not to give up certain rightx. Wages not to bo deiten* dent on the earning of freight. Incoaeof deatJi, such wages to be paid as after- mentioned. Rights to wages in case of termination of service by wreck or lUnoss. Wages not to accrue dur- ing refusal to work or im- pxtKmm«nt ping master to be a true copy shall be given by bim to any party thereto requiring the same ; and such copy shall be receivable in evidence upon any future question touching such claims as aforesaid, and shall have all the effect of the original of which it purports to be a copy : (4.) In cases in which discharge and settlement before a shipping master are hereby required, no payment, receipt, settlementy or discharge otlierwiae made shall operate or be admitted as evidence of the release or satisfaction of any claim. (5.) Upon any payment being made by a master oefore a shipping m^ister, the shipping master shall, if required, sign and give to such master a statement of the whole amount so paid ; and 8uch statement shall as between the master and his employer be received as evidence that he has made the x)ay- ments therein mentioned. LEGAL RIGHTS TO WAGES. 181. A seaman's right to wages and provisions shall be taken to commence either at the time at which he commences work or at the time specified in the agreement for his commencement of work or presence on board, whichever tirst happens. 182. No seaman shall by any agreement forfeit his lien upon the ship, or be deprived of any remedy for the recovery of his wages to which he would otherwise have been entitled ; and every stipulation in any agreement inconsistent with any provision of this Act^ and every stipulation by which any se«'anan consents to abandon his right to wages in the case of the loss of the ship, or to abandon any right which he may have or obtain in the nature of salvage, shall be wholly inoperative. See sec. 18 of 25 ' danger to he were to remain on board ; but, if any seaman on his return to the United Kingdom proves that the master or owner has been guilty of any conduct or default which but for this enactment womd have entitled the seamaii to sue for wages before the termination of the Z 338 APPENDIX. M. 8. Act, voyage or engagement, he shall be entitled to reoover in addition to ^^^ his wages such compensation not exceeding twenty pounds as the Court bearing the case thinks reasonable. Master to 191. Every master of a ship shall, so far as the case permits, have reme^M^or ^^^ B&ine rights, liens, and remedies for the recovery of his wages wages as which bv this Act or by any law or custom any seaman, not being a s«ameu. master, has for the recovery of his wages ; and, if in any proceeding in any Court of Admiralty or Vice-Admiralty touching the claim of a master to wages any right of set-off or counterclaim is set up, it shall be lawful for such Court to enter into and abjudicate upon all questions and to settle all accounts then arising or outstanding and unsettled between the parties to the proceeding, and to direct pay- ment of any balance wnich is found to be due. Wages of 106 And all money, wages, and effects of an^ seaman or dj^c^ apprentice dying during a voyage shall be recoverable m the same during Courts and by uie same modes of proceeding by which seamen are voyage hereby enabled to recover wages due to them. recoverable. •' ^ LEAVIKO SEAMEN ABROAD. On dls- 205. Whenever any British ship is transferred or disposed of at ^^^j^ any place out of her Majesty's dominions, and any seaman or ap- abroad, i^ prentice belonging thereto does not in the presence of some British "*^^ttf . ^ consular officer, or, if there is no such consular officer there, in the wise, certifi- presence of one or more respectable British merchants residing at the catesofdia- place and not interested in the said ship, signify his consent in given^and^ writing to Complete the voyage if continued, and whenever the seamen to Service of any neaman or apprentice belonging to any British ship be sent terminates at any place out of her Majesty s dominions, the master ex^nse of ^hall give to each such seaman or apprentice a certificate of dischai^ owner. in the form sanctioned by the Board of Trade as aforesaid, and in the case of any certificated mate whose certificate he has retained shall return bu or if any subject of tbereiief'of her Majesty, after having been CDga^^ed by any person (whether »^ep lo^t acting as principal or agent) to serve m any ship belonging to any foreign power, or to the subject of any foreign power, ^omes dis- tressed and is relieved as aforesaid, the wages (if any) due to such seaman or apprentice, and all expenses incurred for his subsistence, necessary clothing, conveyance home, and burial, in case he should die abroad before reaching home, shall be a charge upon the ship, whether British or foreign, to which he so belonged as aforesaid ; and the Board of Trade may in the name of her Majesty (besides suing for any penalties which may have been incurred) sue for and recover the said wages and expenses, with costs, either from the master of such ship as aforesaid, or from the person who is owner thereof for the time being, or, in the case of such engagement as aforesaid for service in a foreign ship, from such master or owner, or from the person by whom such engagement was so made as afore* said ; and such sums shall be recoverable either in the same manner as other debts due to her Majesty, or in the same manner and by the same form and process in which wages due to the seaman would be recoverable by nim ; and, in any proceedings for that purpose, pro- duction of the account (if any) to be furnished as hereinbefore is provided in such cases, together with proof of payment by the Board of Trade or by the Paymaster General of the charges incurred on account of any such seaman, apprentice, or other person, shall be sufficient evidence that he was relieved, conveyed nome, or buried (as the case may be) at her Majesty's expense. See sec. 16 of the 18 & 19 Vict, c 91, and sec. 22 of the 25 & 26 Vict c. 63. PROVISIONS, HEALTH, AND AOCOMMODATION. Allowance for short or bad provl- Biona. Forfeituro 222, If the officer to whom any such complaint as last aforesaid com^nt!^ of insufficient provisions, &c., is made, certifies in such statement as aforesaid that there was no reasonable ffround for such complaint, each of the parties so complaining shall be liable to forfeit to the owner out of his wages a sum not exceeding one week's wages. 22S, In the following cases (that is to say,) (1.) If during a voyage the allowance of any of the provisions which anv seaman has by his agreement stipulated for is reduced (except in accordance with any regulations for reduction by way of punishment contained in the agree- ment, and also except for any time during which such seaman wilfully and without sufficient cause refuses or neglects to perform his duty, or is lavrfully under confine- ment for misconduct, either on board or on shore) : (2.) If it is shown that any of such provisions are or have during the voyage been bad in quality and unfit for use : The seaman shall receive by way of compensation for such reduction or bad qualitv, according to the time of its continuance, the follow- ing sums, to be paid to him in addition to and to be recoveraUe aa wages (that is to say,) MERCHANT SHIPPING ACT, 1854 (WAGES). 341 (I.) If }aa allowance is reduced by any quantity not exceeding K. 8. Act, one-third of the quantity Bpeci6ed in the agreement, a sum 1^6^ not exceeding fourpence a day : (2.) If his allowance is reduced by more than one-third of such quantity, eightpence a day : (3^) in respect of such bad quality as aforesaid, a sum not exceedmg one shilling a day : But if it is shown to the satisfaction of the Court before which the case is tried that any proTisions the allowance of which has been reduced could not be pi-ocured or supplied in proper quantities, and that proper and equivalent substitutes were supplied in lieu thereof, the dourt shall take such circumstances into consideration, and shall modify or refuse compensation as the justice of the case may require. 228. The following rules shall be observed with respect to Expense of •xpeMM attendant on mness and death (that in to say,) SJ^J^,^ (I,) If the master or any seaman or apprentice receives any and subsiat- hurt or injury in the service of the ship to which he beloDss, ®p<^ ^ ^u^ the expei^ of providing the necessai/suigical and medi^ ^^r* advice^ with attendance and medicines, and of his subsis- burial in tence until he is cured, or dies, or is brought back to some SJJh'how port in the United Kingdom, if shipped in the CJmted to be de- Kini^dom, or, if shipped in some British possession, to some ^y^ port m such possession, and of his conveyance to such port, and the expense ^if anj) of his bimal, shall be defrayed by the owner of sucn ship, without any ded action on that ao- count from the wages of such master, seaman, or apprentice : (2.) If the mastev or any seaman or apprentice is on account of any iUness temporarily removed irom his ship for the pur- pose of preventing infection, or otherwise for the convenience of the ship, and subsequently returns to his duty, the ex- pense of such removal and of providing the necessary advice with attendance and medicines and of nis subsistence whilst away from the ship, shall be defrayed in like manner : (3.) The expense of all medicines and surgical or medical advice and attendance ffiven to any master, seaman, or apprentice whilst on board nis ship sliall be defrayed in like manner: (4.) In all other cases any reasonable expenses duly incurred by the owner for any seaman in respect of illness, and also any reasonable expenses duly incurred by the owner in respect of the burial of an^ seaman or apprentice who dies whilst on service, shall, if duly proved^ be deducted from the wages of such seaman or apprentice. 229. If any such expenses in respect of the illness, injury, or hurt Ezpenaes, if •f any seaman or apprentice as are to be borne by the owner are ^|^^^^ ^^ paid by an^ consular officer or other penon on behalf of her reoovemble Majesty, or if any other expenses in respect of the illness, injury, or ^'^^^ owner. hurt of any seaman or apprentice whose wa«;ee are not accounted for to- such officer under tho provisions ho^inbef ore contained in that behalf are so paid, such expensea shall be repaid to such officer or other ])er8on by the master of the ship, ana, if not so repaid, the amount thereof, with costs, shall be a cnarge upon the ship, and be recoverable from the said master or from the owner of the ship for the time being as a debt due to her Maje8ty,.and shall b& recoverable 342 APPENDIX. en M. 8. A«t, eitiicr 1>t Ofdinvy proosn of law or in tba nuouMr in Irhkh ^*^ are hereoj enabled to recoTer wages ; and, in any proceeding for the Tecovery thereof the prodaction of a ceiiincate of tlie ftcle» signed by such officer or other persoB, together with soch TondMrs Qf any) as the case requires, shall be sufficient proof that the said expenses wesn doly paid by such eonsalar officer or other person as slorasaid. Sale of and charge upon wa^ee to oe invalid. No debt ex- ceeding Are shillingB recoverable till end of voyage. Misconduct endangering ahip or life or limb A miflde- meanour. Offenceeof seamen and apprentioes, and their punish- menta. Desertion. Neglecting or refusing to Join, or to P&OTECnOH OF BBAWn FBOX UFOBinOV. 888. No wages due or aocroing to any seaman or apprentiee shall be subject to attachment or arreetment from any Court ; snd every payment of wages to a seaman or apprentice shall be valid in law, notwithstanding any previous sale or assignment of such wages, or of any attachment, incumbrance, or arrestment thereon ; and no asao^- ment or sale of such wages or of salvage made prior to the accrumg thereof shall bind the party making the same ; and no power of attorney or authority for the receipt of any such wages or salvage shall be irrevocable. 284. No debt exceeding in amount five shillings, incurred hj any seaman after he has enga^sd to serve, shall be recoverable until the service agreed for is concluded. DI8CIPLINX. 389. Any master of or any sfiaman or apprentice belonging to any British ship who by wilful breach of duty, or hy n^lect of duty, or by reason of drunkenness, does any act tending to the immediate loas, destruction, or serious damage of such ship, or tending immediately to endanger the life or limb of any person belonging to or on board of such ship, or who by wilful breacn of duty, or bv neglect of duty, or by reason of drunkenness, refuses or omits to do any lawful act proper and requisite to be done by him for preserving such ship from immediate loss, destruction, or serious damage, or for preserving any person belonging to or on board of such ship from immediate danser to life or limb, shall for every such offence be deemed guil^ m a misdemeanour. M8. Wheneyer any seaman who has been lawfully engaged, or any apprentice to the sea service, commits any of the following offences he shall be liable to be punished summarily as follows (that is say,) (1.) For desertion ne shidl be liable to imprisonment for any period Dot exceeding twelve weeks, with or without hard labour, and also to forfeit all or any part of the clothes and effects he leaves on board, and all or any part of the wages or emoluments which he has then earned, and also, if such desertion takes place abroad, at the discretion of the Courts to forfeit all or any part of the wages or emoluments he may earn in any other ship in which he may be employed nntu his next return to l^e United Kingdom, and to satisfy any excess of wages paid by the master or owner of the ship from which he deserts to any substitute engaged in his place at a higher rate of wages than the rate stipuSited to be paid to him : (2.) For ne^ecting or refusing, without reasonable cause, to join his ship or to proceed to sea in*his ship, or fbr abraos MERCHANT SHIPPING ACT, 1834 (WAQBS). M3 witboQt leave at any time within twenty-four honn of the V- 8. Aot| shi]y8 sailing from any port, either at the commenoement or ^^H. daring the progress oi any voyage, or for absence at any proceed to time without leave and without sufficient reason from his sea, abeenoe ship or from his duty, not amounting to desertion or not ^^^.fo^p treated as such by the master, he shall be liable to imprison- houn beiora ment for any period not exceeding ten weeks, with or with- *^^ ^^ out hard labour, and also, at the discretion of the Court, to td^o^ forfeit out of his wages a sum not exceeding the amount of leave. two days' pay, and in addition for every twenty-four hours of absence either a sum not exceeding six days' pay, or any •n«n«» wU«h have been properly mcurred & hiring a substitute : (3.) For quitting the ship without leave after her arrival at her ^^°f port of delivery and before she is placed in security, he shall j^^^ befora De liable to forfeit out of his wages a sum not exceeding one ahip u monih^s pay : secured. (4) For wilful disobedience to any lawful command he shall be ^w^^^ liable to imprisonment for anv period not exceeding four ^ ^^ weeks, with or without hard labour, and abo, at the discre- tion of the Court, to forfeit out of his wages a sum not exceeding two days' pay : (5.) For continued wilful disobedience to lawful commands, or ^^^*^ continued wilful neglect of duty, he shall be liable to obedience. imprisonment for anv period not exceeding twelve weeks, with or without hard labour, and also, at the discretion of the Court, to forfeit for every twenty-four hours' continuance of such disobedience or neglect eiUier a sum not exceeding six days' pay, or any expenses which have been properly incurred in hiring a substitute : (6.) For assaulting any master or mate he shall be liable to ^^^^ ^^ imprisonment for any period not exceeding twelve weeks, ^'^^ with or without hard labour : (7.) For combining with any other or others of the crew to Pf?^'^?^^ disobey lawful commands, or to neglect duty, or to impede <^^^' the navigation of the ship or the progresa of the voyage, he shall be uable to imprisonment for any period not exc^ding twelve weeks, with or without hard labour : (6.) For wilfully dainafi;ing the ship, or embezzling or wilfully Wilful damaging any of her stores or caiffo, he shall be liable to e^^S^^ forfeit out of his wages a sum equal in amount to the loss ment thereby sustained, and also, at the discretion of the Court, to imprisonment for any period not exceeding twelve weeks, with or without hard labour : (9.) For any act of smuggling of which he is convicted, and ^^^'°^^' wherebv loss or damage is occasioned to the master or SawlLg km owner, he shall be liable to pay to such master or owner to ovmer. such a sum as is sufficient to reimburse the master or owner for such loss or damage ; and the whole or a proportionate part of his wages may be retained in satisfJACtion or on ac- count of such liability, without prejudice to any further remedy. 847. Whenever any seaman or apprentice is brought before any Desertan 34+ APPENDIX. M. 8. Aet^ Court on the ground of his having neglected or refrtsed to join or to 1864. proceed to sea in any ship in which he is engaged to serve, or of may be sent "^^^S deserted or otherwise absented himself uerefrooa without on board in leave, such Court may, if the master or the owner or his agent so lieu of bci^ requires, instead of committing the offender to prison, cause him to impnaon ^ conveyed on board for the purpose of proceeding on the voyage or deliver him to the master or any mate of the ship, or the owner or his agent, to be by them so conveyed, and may in such case order any costs and expenses properly incurred by or on behalf of the master or owner by reason of the offence to be paid bv the offender, and, if necessary, to be deducted from any wages which he has then earned, or which by virtue of his then existing engagement he may after- wards earn. ^^rj.^ te ^ 249. In all cases of desertion from any ship in any place abroad, of dwortion ^^^ master shall produce the entry of sudi desertion in the official abruid to be log-book to the persou or persons hereby required to indorse on the iiomu^'and ^ agreement a certificate of such desertion ; and such person or persons admitted in shall thereupon make and certify a copy of such entry and also a copy evidence, of the Said certificate of desertion ; and, if such person is a public functionary, he shall, and in other cases the said master shall, forth- with transmit such copies to the registrar-general of seamen in England ; and the said registrar shall, if required, cause the same to be produced in any legal proceedings; and such copies, if purporting to be so made and certified as aforesaid, and certined to nave come from the custody of the said registrar, shall in any legal proceeding relating to such desertion be received as evidence of the entries therein appearing. Facilities ^Q. Whenever a question arises whether the wages of any sea- d^rtio^^ man or apprentice are forfeited for desertion, it shall be sufficient for BO far aa con- the party insisting on the forfeiture to show that such seaman or forStuit) of api^rentice was duly engaged in or that he belonged to the ship from wages. which he is alleged to have deserted, and that he qidtted such ship before the completion of the voyage or engagement, or, if such voyage was to terminate in the United Eangdom and the ship has not returned, that he is absent from her, and that an entry of the deser- tion has been duly made in the official log-book ; and thereupon the desertion shall, so far as relates to any forfeiture of wages or emolu- ments under the provisions hereinbefore contained, be deemed to be proved, unless the seaman or apprentice can produce a proper certifi- cate of discharge, or can otherwise show to the satisraction of the Court that he had sufficient reasons for leaving his ship. CoAtB of pro- 261. Whenever in any proceeding relating to seamen's wages it is tiriromiwiit ^hown that any seaman or apprentice has in the course of the voyage may to the been couvicted of any offence by any competent tribunal, and right- extent of fully punished therefor by imprisonment or otherwise, the Court pounds be hearing the case may direct a part of the wages due to such seaman, deducted not exceeding three pounds, to be applied in reimbursing any costs from wages, properly incurred by the master in procuring such conviction and punishment. Amount of 262. Whenever any seaman contracts for wages by the voyage, or how^S'S ^y *^® "*^» ®' ^y ***® share, and not by the month or other stated aHccrtJiined period of time, the amount of forfeiture to be incurred under this when Act shall be taken to be an amount bearing tiie same proportion to MERCHANT SHIPPING ACT, 1854 (WAOES). 345 the whole wages or share as a calendar month or other the period ^' B. Aot, hereinbefore mentioned in fixing the amount of such forfeiture (as l^^^ the case may lie) bears to the whole time spent in the voyage ; and, if geamon the whole time s|)ent \ix the voyage does not exceed the period for contract for which the pay is to be forfeited, the forfeiture shall extend to the ^^ ▼o7a«e- whole wages or share. 258. All clothes, effects, wages, and emoluments which under the M^cAtUm provisions hereinbefore contained are forfeited for desertion, shall be ^^^^ applied in the first instance in or towards the reimbursement of the expenses occasioned by such detiertion to the master or owner of the ship from which the desertion has taken place ; and may, if earned subsecxuently to the desertion, be recovered by such master, or by the owner or his agent, in the same manner as the deserter might have recovered the same if they had not been forfeited ; and in any legal proceeding relating to such wages the Court may order the ^me to be paid accordingly ; and, subject to such i-eimbursement, the same shall be paid into the receipt of her Majesty's Exchequer in such manner as the Treasury may direct, and shall be carried to and form part of the Consolidated Fund of the United Kingdom ; and in all other cases of forfeiture of wages under th& provisions hereinbefore contained, the forfeiture shall, in the absence of any specific direc- tions to the contrary, be for the benefit of the master or owner by whom the wages are payable. 254. Any question concerning the forfeiture of or deductions from Questionfl of the wa^es of any seaman or apprentice may be determined in any ^J^te"* proceeiTing lawfully instituted with respect to such wages, notwith- decided in standing that the offence in respect of which such question arises, "^^ ^^ thongh hei*eby made punishable by imprisonment as well as for- ^°^^ feiture, has not been made the subject of any criminal proceeding. 255. If any seaman on or before being engaged wilfully and Penalty for fraudulently makes a false statement of the name of his last ship or 'ai«e atat^ last alleged ship, or wilfully and fraudulently makes a false statement ^^giS^ or of his own name, he shall mcur a penalty not exceeding five pounds; name. and such penalty may be deductea from any wages he may earn by virtue of such engagement as aforesaid, and shall, subject to reim- bursement of the loss and expenses (if any) occasioned by any previous desertion, be paid and applied in the same manner as other penalties payable under this Act. 256. Whenever any seamtin commits an act of misconduct for Fines to be which his agreement imposes a fine, and which it is intended to i^^^ punish by enforcing such fine, an entry thereof shall be made in the andpcdd^' ofiScial log-book, and a copy of such entry shall be furnished, or the shipping same shall be read over to the offender, and an entry of such reading ''^^^''■ over and of the reply (if any) made by the offender shall be made, in the manner and subject to the conditions hereinbefore specified with respect to the offences against disciplme specified in and punishable under this Act ; and such fine shall be deducted and paid over as follows, (that is to say,) if the offender is discharged in the United Kingdom, and the offence and such entries in respect thereof as aforesaid are proved, in the case of a foreign-going ship to the satisfaction of tne shipping master before whom the offender is dis- charged, and in the case of a home-trade ship to the satisfaction of the shipping master at or nearest to the place at which the crew is 346 APPENDIX. M. 8. Act, diBcharged, the maBter or owner shall dedact such fine from the wages 18M. of the offender, and pay the same over to such shippingmaster ; and if before the final discharge of the crew in the United Kinffdom any such offender as aforesaid enters into any of her Majesty's snips, or is discharged abroad, and the offence and snch entries as aforesaid are proved to the satisfaction of the officer in command of the ship into which he so enters, or of the consnlar officer, officer of cnstoms, or other person by whose sanction he is so discharged, the fine shall thereupon be d^lacted as aforesaid^ and an entry of snch deduction 9hall then be made in the official log-book (if any) and signed by snch officer or other person ; and on the return of the ship to the United Elingdom the master or owner shall pay over snch fine, in the case of foreign-going ships, to the shipping master before whom the crew is dischar^^, and in the case of home-trade ships to the shippine master at or nearest to the place at which the crew is discharged ; ana if any master or owner ne^ects or refuses to pay over any such fine in manner aforesaid, he mall for each such offence incur a penalty not exceeding six times the amount of the fine retained by him : I^vided that no act of misconduct for which any such fine as afore- said has been inflicted and paid shall be otherwise punished under the provisions of this Act. THE MERCHANT SHIPPING AMENDMENT ACT, 1855. 18 & 19 Vict. c. 91. kastkr8 and seamen (part ui. 07 mebchakt bhipfikq act, 1854). Extension 16. The Board of Trade may issue instructions concerning the conoei^^ relief to be administered to distressed seamen and apprentices, in the reUef of pursuance of the two hundred and eleventh and two nundred and destituta twelfth sections of the Merchant Shipping Act, 1854, and may by "^^"^^'^ such iustruccions determine in what cases and under what circum- stances and conditions such relief is to be administered ; and all powers of recovering expenses incurred with respect to distressed seamen and apprentices, which by the two hundred and thirteenth section of the said Act are given to the Board of Trade, shall extend to all expenses incurred by any foreign government for the purposes aforesaid^ and repaid to such government by her Majesty's govern- ment, and shall likewise extend to any expenses incurred by the conveying home such seamen or apprentices in foreign as well as British ships ; and all provisions concerning the relief of distressed seamen and apprentices, being subjects of her Majesty, which are contained in the said sections of the said Act, and in this section, shall extend to such seamen and apprentices, not being subjects of her Majesty, as are reduced to distress in foreign parts oy reason of their having been shipwrecked, discharged, or left behind from any British ship ; subject, nevertheless, to such modifications and direc- tions concerning the cases in which reiief is to be given to such foreigners, and the country to which they are to be sent, as the Board of Trade may, under the circumstances, think fit to make aud issue. (17 & 18 Yict c. 104, ss. 211, 212, and 213.) MERCHANT SHIPPING ACT, 1862 (WAQES). 347 THE MERCHANT SHIPPING ACT, 1862, 25 & 26 Vicrr. c. 63. 21. The wages of seamen or apprentices who are lost with the K. 8. Act, ship to which they belong shall be dealt with as follows (that is to ^^^ ■"''(l.) Tbe Board of Trade may «coyer the same from the owner 5:^' of the ship in the same manner in which seamen's wages ^^ T^J^^ are recoverable : ^^ ship. (2.) In tLuy proceediDgs for the recovery of such wages, if it is shown by some official return produced out of the custody of the registrar-general of seamen, or by other evidence, that the ship has twelve months or upwards before the institution of the proceedinff left a port of departure, and if it is not shown that she has bc^n heiuxi oi within twelve months after such departure, she shall be deemed to have been lost with all hands on board, either imme- diately after the time she was last heard of, or at such later time as the Court hearing the case may think probable : (3.) The production out of the custody of the registrar- general of seamen, or of the Boaid of Trade, of any duplicate agreement or list of the crew made out at the time of the last departure of the ship from the United Kingdom, or of a certificate purporting to be a certifi- cate from a consular or other public officer at any port abroad, stating that certain seamen or apprentices were shipped in the ship from the said port shall, in the absence uf proof to the contrary, be sufficient proof that the seamen or apprentices therein named were on board at the time of the loss : (4.) The Board of Trade shall deal with such wages in the manner in which they deal with wages of other deceased seamen and apprentices under the Principal Act. THE MERCHANT SHIPPING ACT, 1873, 36 & 37 YiCT. a 85. 7. Any agreement with a seaman made under sect 149 of the AgMement Merchant Shipping Act, 1864, may, instead of stating the nature JJ^iJj;^ and duration of uie intended voyage or engagement as by that period of section required, state the maximum period of the voyage or voyage. engagement, and the places or parts of tne world (if any) to which the voyage or engagement is not to extend. 8. The owner or master of any British vessel engaged in fishing Agnement off the coast of the United Elingdom, may enter into an agreement ^ ^j^^ with any person employed on such vessel, that such person shall be adymtun. 348 APPENDIX. X. S. Act, remunerated wholly by a ahare in the profit of the fiahin^ 1873. adventure. Every such agreement shall be in writing or in prints or partly in writing and partly in print, and shall be signed by the contracting parties in the presence of a superintendent or deputy-superin- tendent of a mercantile marine ofiice. The superintendent or deputy-superintendent, shall, before such agreement is signed, read and (if necessary) explain the same to. the contracting parties, and shall attest the signature of the agree- ment and cert^ that it ban been read to and agreed to by the con- tracting parties. Any such agreement, if made in the manner by this section reauired, shall be valid and binding on all the contcacting parties, notwitnstanding anything contained m section 182 of the Merchant Shipping Act, 1854. 0. If a seaman or apprentice belonging to any ship is detained on a charge of desertion or anv kindred offence, and, if upon a survey of the ship bfiug made under section 7 of the Merchant Shipping Act, 1871,, it is proved that she is not in a fit condition to proceed to sea, or that her accommodation is insufficient, the owner or master of the ship shall be liable to pay to such seaman or apprentice such compensation for his detention as tiie Court having cog^iisance of the proceedings may award. CompenBa- tion to seaman for detention. THE MERCHANT SEAMEN PAYMENT OF WAGES ACT, 1880, 43 & 44 ViGT. c. 16. Ckinditional advance notea UlegaL 17 A 18 Vict c. 104. Amendment of 17 A 18 Vict c 104, 8. 169, as to allotment notes. 17 & 18 Vict a 104, 8. 109. 2. (1.) After the first day of August, one thousand eight hundred and eighty-one, any document authorising or pix>mi8ing, or pui'porting to authorise or promise, the future pajrment of money on account of a seaman's wages oonditioually on hia going to sea from any port in the United Kingdom, and made before those wages have been earned, shall be void. (2.) No money paid in satisfaction or in respect of any such document shall be deducted from a seaman's wages, and no person shall have any right of action, suit, or set-off against the seaman or his assiffnee in respect of any money so paid or purporting to have been so paid. (3.) Nothing in Uiis section shall affect any aUotmwit note made under tne Merchant Shipping Act, 1854. 8. (1.) Every agreement with a seaman which is required by the Merchant Shipping Act, 1854, to be made in the form sanc- tioned by the Board of Trade shall, if the seaman so requhe, stipulate for the allotment of any part not exceeding one half of the wages of the seaman in favour of one or more of the persons mentioned in section one hundred and sixty- nine of the Merchant Shipping Act, 1854, as amended by this section. (2.) The allotment may also be made in favour of a savings bank, and in that case shall be in favour of such persons and carried into effect in such manner as may be for the PAYMENT OF WAGES ACT, 1880 (WAGES). 349 time being directed by regnlatious of the Board of Trade, Wages Aet, and section one hundred and sixty*nine of the Merchant 1880. Shipping Act, 1854, shall be construed as if the said persons ,« . ,„,„ r ''■ J Ai_ • * li & 18 Vict. were named tnerem. c. io4, ». leo. (3.) The sum received in pursuance of such allotment by a savings bank shall be paid out only on au application made, through a superintendent of a mercantile marine office or the Board of Trade, by the seaman himself, or, in case of death, by some person to whom the same might be paid under section one hundred and ninety-nine of the Merchant 17 k 18 vict Shipping Act, 1864. c. 104. b. m. (4.) A payment under an allotment note shall begin at the expiration of one month, or, if the allotment is in favour of a savings bank, of three months, from the date of the agree- ment, or at such later date as may be fixed by the agree- ment, and shall be paid at the expiration of every sub- sequent month, or of such other periods as may be fixed by the agreement, and shall be paid only in respect of wages earned before the date of payment. (5.) For the purfYOses of this section *^ savings bank " means a savings bank established under one of the Acts mentioned in the first schedule to this Act. 4. In the case of foreign-going ships — (1.) The owner or master of the ship shall pay to each seaman Rules m to on account, at the time when he lawfully leaves the ship at P»y™">* ^ the end of his engagement, two pounds, or one fourth of ^^^^ the balance due to him, whichever is lecust ; and shall pay him the remainder of his wages within two clear days (exclu- sive of any Sunday, Fast Day in Scotland, or Bank Holiday) after he so leaves the ship. (2.) The master of the ship may deliver the account of wages mentioned in section one hundred and seventy-one of the Merchant Shipping Act, 1854, to the seaman himself at or 17 ft 18 Vict before the time when he leaves the ship instead of deliver °* ^^' "• ^"^* mg it to a superintendent of a mercantile marine office. (3.) If the seaman consents, the final settlement of his wages may be left to the su|)erinteudeut of a mercantile marine office under regidatiops to be made by the Board of Trade, and the receipt of the superintendent shall in that case operate as a release by the seaman under section one hundred and seventy- five of the Merchant Shipping Act, 1854. i* * i* Vict (4.) In the event of the seaman's wages or any part thereof not ^' ^^* ** ^'^' being paid or settled as in this section mentioned, then, unless the delay is due to the act or default of the seaman, or to any reasonable dispute as to liability, or to any other cause not being the act or default of the owner or master, the seaman's wages shall continue to run and be payable until the time of the final settlement thereof. (5.) Where a question as to wages is raised before the superin- tendent of a mercantile marine office between the master or owner of a ship, and a seaman or apprentice, if the amount in question does not exceed five pounds, the superintendent may adjudicate, and the decision of the supermtendent in 350 APPENDIX. K. S. Act, the matter sball be final ; but, if the superintendent is of 1854. opinion that the question is one which ought to be decided by a Court of law, he may refuse to decide it. Power of 8. Where a proceeding is instituted in or before any Court in ^cindcon- relation to any dispute between an owner or maJster of a ship and tract bo- a seamau or apprentice to the sea service, arising out of or incidental twecn ^ tjj^jp relation as such, or is instituted for the purpose of this master and sectiou, the Court, if, having regard to all the circumstances of the seaman or cage, they think it just so to do, may rescind any contract between apprentice, ^y^^ owner or master and the seaman or apprentice, or any contract of apprenticeship, upon such terms as the Court may think just ; and this power shall be in addition to any other jurisdiction which the Court can exercise independently of this section. For the purposes of this sectiou the term " Court " includes any magistrate or justice having jurisdiction in the matter to which the proceeding relates. (4) Mortgage. THE MERCHANT SHIPPING ACT, 1854. 17 & 18 Vict, a 104. VORTOAOES. Mortgage of 66. A registered ship or any share therein may be mode a security "hu«8^"^ for a loan or other valuable consideration : and the instrument therein. creating such security, hereinafter termed a '* mortgage,** ahall be in the form marked I in the schedule hereto, or as near thereto as dr- cumstanoes permit ; and on the production of such instrument the registrar of the port at which the ship is registered shall record the same in the register book. Mortgages 67. Every such mortgage shall be recorded by the registrar in the tered Si ord®r of time in which the same is produced to him for that pur- orderof time pose ; and the registrar shall by memorandum under his hand, notify ^produo. Q]^ ^iiQ instrument of mortgage that the same has been reoorded by him, stating the date and hour of such record. Entry of dis- 68. Whenever any registered mortgage has been discharged, the ^^^'^bmflL registrar shall, on the production of the mortgage deed, with a receipt mortgage. ^^^ ^^ mortgage money indorsed thereon, duly signed and atteated, make an entry in the register book to the effect that such mortgage has been discharged ; and, upon such entry being made, the estate, if any, which passed to the mortgagee shall vest in the same person or persons in whom the same would, having regard to intervening acts and circumstances, if any, have vested if no such mortgage had ever been made. Priority of 69. If there is more than one mortgage registered of the same ship morfcgaigttB. ^^ share therein, the mortgagees shall, notwithstanding any express, implied, or constructive notice, be entitled in priority one over the MERCHANT SHIPPING ACT, 1854 (MORTGAGE). 351 other according to thn date at which each instrument is recorded in X« S- Act, the register books, and not according to the date of each instrument ^^^ itself. 70. A mortgagee shall not by reason of his mortgage be deemed to ^^^^^^^ be the owner of a ship or any share therein, nor shall the mortgagor S^e^^ be deemed to have ceased to be owner of such mortgaged ship or owner, share, except in so far as may be necessary for making such ship or share available as a security for the mortgage debt. 71. Every registered mortgage shall have power absolutelv to dis- Mortgagee pose of the ship or share in respect of which he is registered, and to power% give effectual receipts for the purchase-money ; but, if there are sale, more persona than one registerea as mortgagees of the same ship or share, no subsequent mortgage shall, except under the order of some Court capable of taking cognizance of such matters, sell such ship or share without the concurrence of every prior mortgagee. 72. No registered mortgage of any snip or of any share therein RigbtB of shall be atTected by any act of bankruptcy committed by the mort- JJJtaS^ted gagor after the date of the record of ^uch mortgage, notwithstanding b^ any act such mortgagor at the time of his becoming bankrupt may have in ^ ^*^'* his possession and diitpomtion, and be reput^ owner of, such ship or mortpigor. share thereof ; and such mortgage shall be preferred to any right, claim, or interf^st in such ship or any share thereof which may belong to the assign ees of such bankrupt. 78. A registered mortgage of any ship or share in a ship may be Transfer of transferred to any person, and the instrument creating sucn transfer ™o'*«"«eB. shall he in the form marked K. in the schedule hereto ; and, on the production of such instrument, the registrar shall enter in the register book the name of the transferee as mortgagee of the ship or shares therein mentioned, and shall by memorandum under his hand record on the instrument of transfer that the same has been recorded by him, stating the date and hour of such record. 74. If the interest of any mortgagee in any ship or in any share Tranamis- therein becomes transmitted in consequence of death, bankruptcy, ^Lt'ectively certificates of mort- gage or certificates of sale, according as they purport to give a power to mortgage or a power to sell. 77. Previously to any certificate of mor(^;age or sale being grantetl, the applicant shall state to the registrar, to be by him entered in the register book, the following particulars, (that is to say), (I.) The names of the persons by whom the power mentioned in such certificate is to be exercised, and in the case of mort- gage the maximum amount of charge to be created, if it is intended to fix any such maximum, and in the case of a sale the minimum priQe at which a sale is to be made, if it is iutended to fix any such minimum : (2.) The specific place or places where such power is to be exercised, or if no place be specified, then that it may be exercised anywhere, subject to the provisions hereinafter contained : (3.) The limit of time within which such power may be exercised. 78. No certificate of mortgage or sale shall be granted so as to authorize any mortgage or sale to be made — At any place within the United Kingdom, if the port of registry of the ship be situate in the United Kingdom ; or at any place within the same British possession, if the port of registry is situate within a British possession ; or By any person not named in the certificate. 79. Certificates of mortgage and sale shall be in the forms marked respectively M. and N. in the schedule hereto, and shall contain a statement of the several particulars hereinbefore directed to be entered in the register book, and in addition thereto an enumeration of any registereu mortgages or certificates of mortgages or sale affecting me ships or shares in respect of which such certificates are given. 80. The following roles shall be observed as to certificates of mortgage, (that is to say,) (1.) The power shall be exercised in conformity with the direc- tions contained in the certificate : (2. ) A record of every mortgage made thereunder shaU be in- dorsed thereon by a registrar or British consular officer : (3.) No mortgage bond fide made thereunder shall be impeached by reason of the person by whom the power was given dying before the making of such mortgage : (4.) Whenever the certificate contains a specification of the place or places at which, and a limit of time not exceeding twelve months within which, the power is to be exercised, no mortgage bond fide made to a mortgagee without notice shall be impeached by reason of the bankruptcy or insolvency of the person by whom the power was given : MERCHANT SHIPPING ACT, 1854 (MORTGAGE). 353 (5.) Every mortgage which is so registered as aforesaid on the It S. Act, certificate shall have priority over all mortgages of the same l^^ ship or share created subsequently to the date of the entry of the certificate in the register book ; and, if there be more mortgages than one so indorsed, the respective mortgagees claiming thereunder shall, notwithstanding any express, implied, or constructive notice, be entitled one before the other according to the date at which a record of each instru- ment is indorsed on the certificate, and not according to the date of the instrument creating the mortgage : (6.) Subject to the foregoing rules, every mor^raffee whose mort- gage is registered on Uie certificate shall nave the same rights and powers and be subject to the same liabilities as he would have had and been subject to if his mortgage had been registered in the register book instead of on the certificate : (7.) The discharge of any mortgage so registered on the certificate may be indorsed thereon by any registrar or Biitish consular oflSoer, upon the production of such evidence as is hereby required to be produced to the registrar on the entry of the discharge of a mortgage in the register book ; and, upon such indorsement being made, the estate, if any, which passed to the mortgagee shall vest in the same person or persons in whom the same would, having regard to intervening acts and circumstances, if any, have vested if no such mortgage had been made : (S.) Upon the deUveiy of any certificate of mortgage to the regis- trar by whom it was granted he shall, after recoinling in the register book in such manner as to preserve its priority any tmsatisfied mortgage registered thereon, cancel such certifi- cate, and enter the fact of such cancellation in the register book ; and every certificate so cancelled shall be void to all intents. 81. The following rules shall be observed as to certificates of sale, Rules aa to (that is to say,) S'^u^J**** (I.) No such certificate shall be granted except for the sale of an entire ship : (2.) The power shall be exereised in conformity with the direc- tions contained in the certificate : (3.) No sale bond fide made to a purchaser for valuable considera- tion shall be impeached by reason of the person by whom the power was given dying before the making of such sale : (4.) Whenever the certificate contains a specification of the place or places at which, and a limit of time not exceeding twelve months within which, the power is to be exercised, no sale hand fidt made to a purcnaser for valuable consideration without notice shall be impeached by reason of the bank- ruptcy or insolvency of the person by whom the power was given: (5.) An^ transfer made to a person qualified to be the owner of British ships shall be bv bill of sale in the form hereinbefore mentioned, or as near thereto as circumstances permit : (6.) If the ship is sold to a party qualified to hold British ships, A A 854 APPENDIX. V. 8. Aet, the ship shall be registered anew ; but notloe of all moit- 1854. gages enamerated on the certificate of sale shall be entered in the r^;iater book : (7.) PreTiousty to such r^;i8ti7anew there shall be prodaced to the reeiatrar required to make the same bill of sale by which the ship is transferzed, the certificate of sale, and the certifi- cate of registry of snch ship : (8.) Such last mentioned registrar shall retain the certificates of sale and registry, and, after having indorsed on both of such instruments an entry of the fact of a sale having taken place, shall forward the said certificates to the r^strar of the port appearing on such certificates to be the former portof r^^iistry of the ship ; and such last-mentioned registrar shall there- upon make a memorandum of the sale in his regiater book, and the registry of the ^ip in such book shall be considered as closed, except as far as relates to any unsatisfied mort^ gages or existing certificates of mortgage entered therein : (9.) On such registry anew the description of the ship contained in her original certificate of registry may be transferred to the new register book, without her bein^ re-surveyed, and the decluation to be made by the purchaser shau be the same as would be required to be made by an ordinary trans- feree: (10.) If the ship is sold to a party not qualified to be the owner of a British ship, the bill of sale by which the ship is trans- ferred, the certificate of sale, and the certificate of registry shall be produced to some registrar or consular officer, who shall retain the certificates of sale and registry, and, having indorsed thereon the &ct of such ship having been sold to persons not qualified to be owners of British ships, shall forward such certificates to the registrar of the port appear- ing on the certificate of registry to be the port of registry of such ship ; and such last-mentioned registrar shall thereupon make a memorandum of the sale in his register book ; and the registry of the ship in such book shall be considerad as closed, except so far as relates to any unsatisfied mortgages or existing certificates of mortgage entered therein : (11.) If upon a sale being made to an unqualified person de&ult is made in the production of such oertificatea aa are men- tioned in the last rule, such unqualified person shall be con- sidered by British law as having acquired no title to or interest in the ship; and further, the party upon whose application such certificate was granted, and the persons exercising the power, shall each incur a penalty not exceed- ing one hundred pounds : (12.) If no sale is made in oonfoimity with the certificate of sale, such certificate shall be delivered to the registrar by whom the same was granted ; and such registrar shall thereupon cancel it, and enter the fact of such cancellation in the register book ; and every certificate so cancelled shall be void to all intents. ReTocatlon B8. The registered owner for the time being of any ship or share of cerUfl. therein in respect of which a certificate of mortgage or sale has been HSRCHANT SHIPPING ACTS, 1854, 1862 (MOBTGAGE, ETC.) 355 granted, specifying the place or places where the power thereby ffiven K* B. AtH, 18 to be ezerdsed, may, by an instrument under nis hand made in the ^^ form O. in the schedule hereto, or as near thereto as circumstances cateeof permit, authorize the registrar oy whom such certificate was granted inort«age to give notice to the registrar or consular officer, registrars or consular ^^ "^^ officers, at such place or places, that such certificate is revoked ; and notice shall be given accordingly ; and all registrars or consular officers receiying such notice shall record the same, and shall exhibit the same to all persons who may apply to them for the purpose of effecting or obtaining a mortgage or tnmafer under the said certiificato of mort^u» or sale ; and, after such notice has been so recorded, the said certm- cato shall, so far as concerns any mortgaffe or sale to be thereafter made at such place, be deemed to be revoked and of no effect ; and every registrar or consular officer recording any such notice shall thereupon state to the registrar by whom the certificate was granted whether any previous exercise of the power to which such certificate refers has taken place. 91. The transier of the registry of any ship in manner aforesaid '^^"'^''^ shall not in any way affect the righto of the several persons interested, tiS^g^ either as owners or mortgagees, in such ship, but such righto shall in rights of all respecto be maintains and continue in the same manner as if no o^^«'"< such transfer had been effected. See sec. 12 of the 18 & 19 Vict. &91. THE MERCHANT SHIPPING ACT AMENDMENT ACT, 1862. 25 & 26 y lOT. a 63. REOISTBT AITD MSASUBSICEIIT OF TOKKAGB (PART II. OF MERCHANT SHIPPINa ACT, 1854). 8. It is hereby declared that the expression ^ beneficial interest," squitieB not whenever used in the second part of the Principal Act, includes if^^^i^^ interesto arising under contract and other eqnitoble ioteresto ; and the shipptug intention of the said Act is that, without prejudice to the provisions Act contained in the said Act for preventing notice of trusto from being entered in the register book or received by the registrar, and without prejudice to ^e powers of disposition and of giving receipte conferred by the said Act on reffisterea owners and mortgagees, and without prejudice to the provisions contained in the said Act relating to the exclusion of unqualified persons from the ownership of Britiui ships, equities may be enforcea against owners and mortgagees of ships in respect of their interest therein, in the same manner as equities may be enforced against them in respect of any other personal property. See sees. 37 (2,)— 38 (6,)— 39 (5,)— 100. A A 2 356 APPENDIX. X. 8. Act, 1861 Penalty for using im- proper certificate. Penaltiee. For unduly assuming a British character. For conceal- ment of British or assumption of foreign character. For acquir- ing owner- ship if UP- qualified. For false declaration of owner- amp. (5.) Forfeiture of Ships, THE MERCHANT SHIPPING ACT, 1854. 17&18 Vict. c. 104. 62. If the master or owner of any ship uses or attempts to UBe for the navigation of such ship a certificate of registry not legally granted in respect of such ship, he shall be guilty of a misdemeanour, and it shall oe lawful for any commissioned officer on full pay in the military or naval service of her Majesty, or any British officer of customs, or any British consular officer, to seize and detain such ship and to brine her for adjudication before the High Court of Admiralty in England or Ireland or any Court having Admiralty jurisdiction in her Majesty's dominions ; and, if such Court is of opinion that such use or attempt at use has taken place, it shall pronounce such ship, with her tackle, apparel, and furniture, to be forfeited to her Majesty, and may award such portion of the proceeds arising from the sale of such ship as it may think just to the officer so bringing in the name for adjudication. 103. The offences hereinafter mentioned shall be punishable as follows : — (1.) If any person uses the British Hms and assumes the British national character on board any ship owned in whole or in part by any persons not entitled by law to own British ships, lor the purpose of making such ship appear to be a British ship, such ship ehaM be ff)rfeited to her Majesty, unless such assimiption has been made for the purpose of escaping cap- ture by an enemy or by a foreign «iip of war in exercise of some belliflerent right : and in any proceeding for enforcing any such forfeiture, the burden of proving a title to nse the British flag and assume the British national character shall lie upon the person using and assuming the same. (2.) If the master or owner of any British ship does or permits to be done any matter or thing, or carries or permits to be earned any papers or documents, with intent to conceal the British character of such ship from any person entitled by British law to inquire into the same, or to assume a foreign character, or with intent to deceive any such person as la.sUy hereinbefore mentioned, such ship shall be forfeited to her Majesty ; and the master, if he commits or is privy to the commission of the offence, shall be guilty of a mis- denreanour. (3.) If any unqualified person, except in the case of such trans- mitted interests as are hereinbiefore mentioned, acquires as owner any interest, either legal or beneficial, in a ship using a British flag and assuming the British character, such interest shall be forfeited to her Majesty. (4.) If any {person, on behalf of himself'^ or any other person or body of persons, wilfully makes a false declaration touching the qualification of himself or such other person or body of persons to own British ships or any shares therein, the declarant shall be guilty of a misdemeanour ; and the ship FORFEITURE OF SHIPS. 357 or share in respect of which such declaration is made, if the X. 8. Aet, same has not been forfeited under the foregoing provisiou, 1854. shall, to the extent of the interest therein of the person making the declaration, and, unless it ia shown that he had no authority to make the same, of the parties on behalf of whom such declaration Is made, be forfeited to her Majesty. Andy in order that the above provisions as to forfeitures may be ' carried into effect, it shall be lawful for any commissioned officer on full pay in the military or naval service of her Majesty, or any British officer of customs, or any British consular officer, to seize and detain any ship which has, either wholly or as to any share therein, be- come subject to forfeiture as aforesaid, and to htins her for adjudica- tion before the High Court of Admiralty in England or Ireland, or any Court having Admiralty jurisdiction in her Majest/s dominions ; and fiuch Court may thereupon make such order in the case as it may think fit, and may award to the officer bringing in the same for adju- dication such portion of the proceeds of the sale of any forfeited ship or share as it may think right. 104. No such officer as aforesaid shall be responsible, either civilly Officer not or criminally, to any person whomsoever, in respect of the seizure J^^^^^JJ^j^ or detention of any ship that has been seized or aetained by him in mado on pursuance of the provisions herein contained, notwithstanding that roasonabie such ship is not brought in for adjudication, or, if so brought in, is ^^^ ' declared not to be liable to forfeiture, if it is snown to the satisfaction of the Judge or Court before whom any trial relating to such ship or such seizure or detention is held that there were reasonable grounds for such seizure or|detention ; but, if no such grounds are shown, such Judge or Court may award payment of costs and damages to any party aggrieved, and make such other order in the premises as it tninlui just APPENDIX II. ORDERS AS TO COSTS AND FEES. PART L COSTS. ADDITIONAL RULES OF COURT UNDER THE SUPREME AD. 1876. COURT OF JUDICATURE ACT, 1875. ' ORDER VI. The following regulations aa to costs of proceedings in the OMte. Supreme Court of Judicature shall regulate such costs from the com- mencement of the Supreme Court of Judicature Acts, 1873 and 1875 : 1. Solicitors shall be entitled to charge and be allowed the fees set forth in the column headed " lower scale " in the schedule hereto, — In all causes and matters by the 34th section of the said Act assigned to the Probate, Divorce, and Admiralty Division of the Court. 8. Notwithstanding these rules, the Court or Judge may in any case* dbect the fees set forth in either of the said two columns to be allowed to all or either or any of the parties, and as to all or any part of the costs. REGUL^ GENERALES, [3»tl April, 1876.] Admiraltt Division. The fees on the higher scale are to be allowed in actions for salvage when JIOOO or upwards is awarded . In actions for damage by collision to plaintiffs when £1000 or upwards is recovered, exclusive of interest : To defendants when £2000 or upwards is claimed by the plaintiffs r But, in any case in which the fees on the higher scale are sanctioned, the taxing officer is to exercise a discretion as to the extent to which those under the heads appearances, instructions, perusals, and at- tendances are to be allowecL 0 6 8 0 13 4 0 5 0 0 5 0 0 6 8 0 6 8 0 6 8 0 6 8 0 4 0 0 5 0 1 1 0 1 1 0 0 1 4 0 1 4 360 APPENDIX. A.D. 1876. THE SCHEDULE ABOVE REFERRED TO (a). An order or rule herein referred to by number shall mean the order or rule bo numbered in the first schedule to the Supreme Court of Judicature Act, 1875. Writs, Summonses, axd Warrants. Lower Scale. Higher Scale. £ ». d. £ 9. d. Writ of summons for the commencement of any action And for indorsement of claim, if special Concurrent writ of summons Renewal of a writ of summons Notice of a writ for seryioe in lieu of writ out of jurisdiction Writ of inquiry... Or per folio Writ of sttbpcsna ad Ustificcmdum or duces tecum ... ... ... ... 0 6 8 0 6 8 And if more than four folios, for each folio beyond four ... ... ... ... 0 1 4 0 14 Writ or writs of suhpana ad testificandum for any number of persons not exoeedinff three, and the same for every addition^ number not exceeding three ... ...068 068 Writ of execution, or other writ to enforce any judgment or order... ... ... 0 7 0 0 10 0 And, if more than four folios, for each folio beyond four ... ... ... ... 0 1 4 0 14 Procuring a writ of execution or notice to the sheriff, marked with a seal of renewal Notice thereof to serve on sheriff ... Any writ not included in the above These fees include all indorsements and copies, or prcecipes, for the officer sealing them, and attendances to issue or seal, but not the Court fees. Summons to attend at Judges' chambers ... 0 3 0 0 6 8 Or, if special, at taxing officer's discretion, not exceeding ... ... Copy for the Judge, when required Or per folio Services, Notices, ANb Demands. Service of any writ, summons, warrant, inter- rogatories, petition, order, notice, or demand on a party who has not entered an appear- ance, and if not authorised to be served by post... ... ... ... ... 0 5 0 0 5 0 If served at a distance of more than two miles (a) For precedents of Bills of Costs, see post, Appendix VL 0 6 8 0 6 8 0 4 0 0 5 0 0 7 0 0 10 0 0 6 8 1 1 0 0 2 0 0 2 0 — 0 0 4 SCALE OF COSTS. 361 Lower Scale. Higher Scale. . «^ iovk £ i, . 1870. Court is heiebjr annulled. The costs 01 an application to extend the time for taking any pro- ceedinfi^ shall, in the absence of an order by the Court or a Judge directing by whom they are to be paid, be in the discretion of the taxing master. (Rules of April, 1880.) 88. The taxing officers of the Sapreme Court, or of any division thereof, shall, for the purpose of any proceeding before them, have power and authority to administer oaths, and shall, in relation to the taxation of costs, perform all such duties as have heretofore been per- formed by any of the masters, taxing masters, registrars, or other officers of any of the Courts whose jurisdiction is by the Act trans- ferred to the High Court of J ustice or Court of Appeal, and shall, in respect thereof, have such powers and authorities as previous to the commencement of the Act were vested in any of such officers, in- cluding examiniog witnesses, directing production of books, papers, and documents, making separate certificates or allocaturs, requiring any party to be represented by a separate solicitor, and to direct and adopt all such other proceedings as could be directed or adopted by any such officer on references for the taxation of costs, and taking accounts of what is due in respect of such costs, and such other accounts connected therewith as may be directed by the Court or a Judge. 84. The taxing officer shall have authority to arrange and direct what parties are to attend before him on the taxation of costs to be borne by a fund or estate, and to disallow the costs of any party whose attendance such officer shall in his discretion consider un- necesa&ry in consequence of the interest of such party in such fund or estate being small or remote or sufficiently protected by other parties interested. 25. When any party entitled to costs refuses or neglects to bring in his costs for taxation, or to procure the same to be taxed, and thereby prejudices any other party, the taxing officer shall be at liberty to ccotily the costs of the other parties, and certify such refusal or neglect, or may allow such party refusing or neglecting a nominal or other sum for such costs, so as to prevent any other party being prejudiced by such refusal or neglect. 86. As to costs to be paid or borne by another party, no costs are to be allowed which do not appear to the taxing officer to have been necesaaiv or proper for the attainment of justice or defending the rights 01 the party, or which appear to the taxing officer to have been incurred through over-caution, negligence, or mistake, or merely at the desire of the party. 87. As to any work and labour properly performed and not herein provided for, and in respect of which fees have heretofore been aUowed, the same or simiLur fees are to be allowed for such work and labour as have heretofore been allowed. 88. The rules, orders, and practice of any Court whose jurisdiction is transferred to the High Court of Justice or Court of Appeal, relating to costs, and the allowance of the fees of solicitors and attorneys, and the taxation of costs, existing prior to the commence- ment of the Act, shall, in so far as they are' not inconsistent with the Act, and the rules of Court in pursuance thereof, remain in 874 APPENDIX. A.D. 1876. force, and be applicable to costs of the same or analogotw pio- ceedings, and to the allowance of the fees of solidtors of Ac Supreme Court and the taxation of coats in the High Conrt of Justice and Court of AppeaL 29. As to all fees or allowances which are discretionary, the same are, unless otherwise provided, to be allowed at the discretion of the tazinff ofiicer, who, in the exercise of such discTetion, is to take into consiaeration the other fees and allowances to the solicitor and counsel, if any, in respect of the work to which any such allowance applies, the nature and importance of the cause or matter, the amount involved, the interest of the parties, the fund ox persons to bear the costs, the general conduct ana costs of the proceedings, and all other circumstances. 80. Any party who may be dissatisfied with the allowance or disallowance by any taxing officer, in any bill of costs taxed by him, of the whole or any part of any item or items, may, at aoy time before the certificate or allocatur is signed, deliver to the other party interested therein, and cany in before the taxing officer, an objection in writmg to such allowance or disallowance, specifying therein by a list, in a short and concise form, the item or items, or parts or part thereof, olMected to, and may thereupon apply to the taxing officer to review the taxation in respect of the same. 31. Upon such application the taxing officer shall re-consider and review his taxation upon such objections, and he may, if he shaU think fit, receive further evidence in respect thereof, and, if sa required by either party, he shall state either in his certificate of taxation or allocatur, or by reference to such objection, the grounds aud reasons of his decision thereon, and any special facts or dream- stances relating thereto. 82. Any party who may be dissatisfied with the certificate or allocatur of tne taxing officer as to any item or part of an item which may have been objected to as aforesaid, may apply to a Judge at chambers for an order to review the taxation as to the same item or part of an item, and the Judse may thereupon make such order as to the Judge may seem jual ; out the certificate or allocatur of the taxing officer shall be final and conclusive as to all matters which shall not have been objected to in manner aforesaid. 88. Such application shall be heard and determined by the Judge upon the eviaence which shall have been brought in before the taxing officer, and no further evidence shall be recdved upon the hearing thereof, unless the Judge shall otherwise direct 84. When a writ of summons for the commencement of an action shall be issued from a district, and when an action proceeds in a district registry, all fees and allowances, and rules and directions re- lating to costs, which would be applicable to such proceeding if the writ of summons were issued in London, and if the action proceeded in London, shall i^ply to such writ of sununons issued from and other proceedings in the district registry. COURT PEES. 875 PAET 11. A.D. 187g, FEES. ORDER AS TO COURT FEES UNDER THE SUPREME COURT OF JUDICATURE ACT, 1876. [2Sih Oetobefj 1875.] The Right Honorable Hugh MacOe^ont Baron Caims, Lord High Chancellor of Great Britain, by and with the advice and consent of the undersigned Judges of the Supreme Court, and with the concurrence of the Lords Commissioners of her Majesty's Treasury, doth hereby in pursuance and execution of the powers given by the Supreme Court of Judicature Act, 1875, and all other powers and authorities enabling him in this behalf^ order and direct in manner following : — I. The fees and percentages contained in the schedule hereto are fixed and appointed to be and shall be taken in the High Court of Justioe, and in the Court of Appeal, and in any Court to be created by any commission, and in any office which is connected with any of those Courts, or in which any business connected with any of those Courts is conducted, and by any officer paid wholly or partly out of public moneys who is attached to any of those Courts or the Supreme Court, or any Judge of those Courts, or any of them ; and the said fees and percentages shall be taken by stamps, except those taken in the district registries, which shalL until further omer, be taken in monev, and applied and accounted for in such manner as the Treasury may m>m time to time direct XL The fees and percentages set forth in the column headed Lower Scale in the schedule hereto are to be taken and paid in all cases in which the Lower Scale of fees is to be chargea and allowed to solicitors under the provisions of the Additional Rules of Court under the Supreme Court of Judicature Act, 1875, issued by Order in Council, dated the 12th day of August, 1875, and the fees and per- centages set forth in the column healed Higher Scale in the scheaule hereto are to be taken and paid in all other cases. IV. The provisions in this order shall not apply to or affiect any of the matters following (that is to say) : — The existing fees and percentages in respect of any matter at the time of the passing of the Supreme Court of Judicature Act^ 1875, within the jurisdiction of the Court of Probate, the Court for Divorce and Matrimonial Causes, or the Admiralty 376 APPENDIX. AtD. 1875. Court, or relating to ai^ appeal firom the Chief Judge in ... ^- Bankruptcy, except so ur as the procedure in any such matter, or the fees or percentages to be taken in respect thereof, is or are expiessly yaried by the schedule to the said Act, or by this order, or by any rules of Court made or to be made oy Order in Council before the commeBcement of the said Act ; The existing fees and percentages direeted to be taken or paid by any Act of Parliament, and in respect of which no fee or percentage is hereby provided. V. The existing rules and practice, applicable to proceedings by persons suing in formA pauperis, shall continue and be applicable to proceedings to which thia order relates. VI. Save as otherwise provided by this order, all existing fees and per- centages which may oe taken in any of the Courts whose jurisdiction ia, by the Judicature Acts, 1873 and 1875^ truisfened to the High Court of Justice or Court of Appeal, or in any office which is con- nected with any of those Courts, or in which any business connected with any of those Courts is conducted, or by any officer paid wholly or partly out of public moneys who is attached to any of thoee Courts, or the Supreme Court, or an^ Judge of thoee Courts^ oi any of ihem, shall be and are hereby abolished. VII. A folio is to comprise 72 words, every figure comprised in a column being counted as one word. VIII. The provisions of Order LXIII. in the first schedule to the Supreme Oourt of Judicature Act» 1875, shall apply to this order. IX. Thia order shall come into operation at the time of the oommenoe- ment of the Supreme Oourt of Judicature Acts, 1873 and 1876. Form of Certificate for paying Lower Scale of Corirt Fee$ above referred to. (Title of cause or matter.) I hereby certify that to the best of my judgment and bdUef the Lower Scale of Fees of Court is applicable to this case. Dated, &c A. B.^ Solicitor for Plaintiff or Defendant 0 2 6 0 2 6 0 2 6 0 2 6 0 2 6 0 6 0 0 5 0 0 10 0 COURT F£BS. 377 THE SCHEDULE ABOVE REFERRED TO. A.D. 1875. An Order or Rule herein referred to by number ahall mean the Order or Rule so numbered in the First Schedule to the Supreme Court of Judicature Act, 1875. SuMMoNBEs, Writs, Commisbions, and WAHRANra Lower Boale. Higfaor Scale. £«.<£. £ M. d. On sealing a writ of summons for commence- ment of an action ... ... ... 0 5 0 0 10 0 On sealing a concurrent, renewed, or amended writ of summons for commencement of an acuon ... ... ... ... On sealing a notice for service under Order XVI., Rule 18 On sealing a writ of subpoena not exceeding three persons .. . On sealing every other writ On sealing or issuing any other summons or warrant ... ... ... ... 0 2 0 0 3 0 On sealing or issuing a commission to take oauis or affidavits in the Supreme VyOUrt ... ••• ... ... Every other coumiission ... *0n every praecipe (a) *2. On every warrant or citation ... ♦3. On every detainer ♦4. On every release *5. On every commission, monition, decree, requisition, attachment, or other instru- ment for which a fee is not specially pro- vided ... ... ... ... 10 0 Appeabances. On entering an appearance, for each person ... 0 2 0 0 2 0 Copies. For a copy of a written deposition of a witness to enable a printer to print the same, for each folio ... ... ... ... 0 0 4 0 0 4 For examining a written or printed copy, and marking same as an office copy, for each folio... ... ... ... ... 0 0 2 0 0 2 For making a copy and marking same as an office copy, for each folio ... ... 0 0 6 0 0 6 (a) The fees marked with an asterisk are those made in pursuance of 3 & 4 Vict. c. 65, 8. 19, and 17 & 18 Viot. c. 78, confirmed by Order in Couaoil, 29th November, 1859, so far as they are still in force. 5 0 0 5 0 0 1 0 0 1 0 0 0 5 0 0 10 0 1 0 0 0 10 0 378 APPENDIX. A.D. 1876. Lower Scale. Higher Scele. £ 9 d. SL M. d. For a copy in a foreign language, the actual cost For a copy of a plan, map, seotion, draw- ing, photograph, or diagram, the actual cost. For a printed eopy of an oider, not being an office or certified copy, for each folio ... 0 0 I 0 0 1 *2d. For every office copy of a document in the English language^ per sheet not exceed- ing 10 folios, including the registrar's sig- nature ... ... ... ... 0 6 0 *24. If required to be collated in the r^[istry, per sheet not exceeding 10 folios, in adm- tion to the above ... ... ... 0 2 0 *25. For office copies of papers in a foreign language, or oi shorthand writers' or re- porters notes, or of abstracts or transla- tions made in the registry, in addition to the above fees, the charges of the copyist^ shorthand writer, reporter, or translator. Attendakcbs. On an application, with or without a sub^ poena, tor any officer to attend as a witness or to produce any record or document to be given in evidence (in addition to the reason- able expenses of tne officer) for each day or part of a day he shall necessarily be absent m>m his office ... ... ... 1 0 0 10 0 The officer may require a deposit of stamps on account of any further fees, and a de- posit of money on account of any further expenses which may probablv become pay- able beyond the amount paid for fees and expenses cm the application, and the officer or his clerk taking such deposit shall there- upon make a memorandum thereof on the application. The officer may also require an undertaking in writing to pay any further fees and ex- penses which may become payable beyond the amount so paid and deposited. Oaths, &c. For taxing an affidavit or an affirmation or attestation upon honour in lieu of an affidavit or a declaration, except for the purpose of receipt of dividends from the paymaster-genenu, for each person making the same ... ... ... ... 0 1 6 0 16 . COURT FEES. 379 Lower Scale. Higher Scale. A.D. 1875. £ 8. d, £ f. <{. And in addition thereto for each exhibit therein referred to and required to be marked, whether annexed or not ... 0 1 0 0 10 *18. On administering an oath, for each de- ponent ... ... ... ... 0 10 Filing. On filing an affidavit with exhibits (if any) annexed, submisBiun to arbitration, award, bill of sale, warrant of attorney, cognovit, bail, satisfaxstion piece, and writ of execu- tion with return ... ... ... 0 2 0 0 2 0 On filing a caveat ... ... ..050 050* Certificates. For a certificate of appearance, or of a plead- ing, affidavit, or proceeding having been entered, tiled, or taken, or of the negative thereof ... ... ... ... 0 1 0 0 4 0 Searches and Inspections. On an application to search for an appear- ance or an affidavit, and inspecting the same ... ... ... ... 0 1 0 0 10 On an application to search an index, and inspect a pleading, decree, order or other record, unless otherwise expressly provided for by any Act of Parliament or this Order, and to inspect documents deposited for safe custody, or production pursuant to an order, for each nour or part of an hour occupied ... ... ... ... 0 2 6 0 2 6 Not exceeding one day ... ... ... 0 10 0 0 10 0 EXAKINATION OF WITNESSES. For every witness sworn and examined by an examiner or other officer in his office, in- cluding oath, for each hour ... ... 0 10 0 0 10 0 For an examination of witnesses by any such officer away from the office (in addition to reasonable travelling and other expenses), per day ... ... ... ... 3 0 0 3 0 0 The officer may require a deposit of stamps on account of fees and a deposit of money on account of expenses which may probably become payable beyond any amount paid for fees and expenses upon the examination, and the officer or his clerk taking such 380 APPENDIX. A.D. 1876. Lower Scale. Higher Scale. ^ & $. d. £ M^ d. deposit shall tbereupcm make a memoran- dum thereof and deliver the same to the party making the deposit The omcer may also require an undertaking in writing to pay auy further fees and ex- penses which may become payable beyond the amount so paid and deposited. These fees are not to apply to the examination of witnesses for the purpose of an^ inquiry, taxation of eosta, or other proceeding before the officer. * 17. On the examination of any witness vivd voce either in Court or before the registrar ... ... ... ... 0 10 O For entering or setting down^ or re-entering or re-setting down an appeal to the Court of Appeal, or a cause for trial or hearing in any Court in London or Middlesex, or at any assizes, including a demurrer, special case, and petition of nght, but not any other petition, nor a summons adjourned from chambers ... ... ... ... 2 0 0 2 0 0 For a certificate of an associate of the result of trial ... ... ... ... 1 0 0 10 0 JUDGMBNTB, DeCBXES, AND OrDERS. For drawing up and entering a judgment, or a decree or decretal order, whether on the original hearing of a cause or on further consideration, including a cause commenced by summons at chambers, and an order on the hearing of a special case or petition, and any order by the Court of Appeial ... 0 10 0 10 0 For drawing up and entering any otner order, whether maae in ooort or at chambers ... 0 3 0 0 5 0 For copy of a plan, map, section, drawing, photograph, or diagram, required to accom- pany any order, the actual cost Takiho Accoukts. On taking an account of a receiver, guardian, consignee, bailee, manager, proviaioDal, officiiu, or voluntary liquidator, or seques- trator, or of an executor, administrator, trustee, agent, solicitor, mortgagee, co- tenant, co-partner, execution crecQtor, or other person liable to account, when the amount found to have been received with- out deducting any payment shall not exceed jC200 ... ... ... 0 2 0 0 2 0 COURT FEES. 381 Lower Scale. Higher Scale. A.D. 1876. A $. . 1876. Lower Scale. Higher Scale. £ ». d. £ 4. d. The taxing officer may require a deposit of Btamps on account of faes before taxation not exceeding the fees on the full amount of the costs as (submitted for taxation, and the officer or his clerk on taking such deposit shall make a memorandum thereof on the bill of costs. For a certificate or allocatur of the result, not being a judgment ... ... ... — 10 0 Pbtitions. For answering a petition for hearing in Court, and setting down ... ... ... 0 5 0 10 0 For answering a non-attendable petition, not being a petition for an order of course •••050 0 10 0 On a matter of course order, on a petition ot right ... ... ... ... 0 10 0 0 10 0 On an order for a commission on a petition of right ... ... ... ... 1 0 0 10 0 Register of Judgments and Lis Pendens. For registering a judgment or lis pendens, although more than one name may have to be re^stered For re-registering same ... For a search for each name For a certificate of entry of satisfaction For certificate of a judgment for registration in Ireland or Scotland under the Judgments Extension Act, 1868, including affidavit ... 0 2 0 0 2 0 On filing for registration a certificate issued out of Courts of Dublin or Court of Session in Scotland under the same Act, although more than one name may have to be regis- tered under the same Act ... ... 0 7 0 0 7 0 On every certificate of the entry of satisfac^ tion under the same Act ... ... 0 1 0 0 10 For a search made in one or both of the ras- ters of Irish and Scotch judgments, for each name ... ... ... ... 0 1 0 0 10 fl Miscellaneous. On an allowance of bye-laws or table of fees 10 0 10 0 On a fiat of a Jndge ... ... ... 0 5 0 0 5 0 On signing an advertisement ... ... — 10 0 Upon a reference to a Master of the Queen's Bench, Common Pleas, or Exchequer Divi- sions, or a District Registrar, for the pur- pose of any investigation or inquiry other 0 2 6 0 2 6 0 1 0 0 1 0 0 1 0 0 1 0 0 1 0 0 1 0 COrRT FEES. 3S3 Lower Scale. £ «. d. Higher Scale. A.D. 1876. & 9, d. than the taking of an account for which another fee is herein provided, for every hour or part of an hour the Master or Reg^trar is occupied ... ... ... A deposit on account of fees before proceeding with sQch reference, or at any time during the course thereof, may be required, and a memorandum thereof, shall be delivered to the party making the deposit. On taking acknowledgment of a deed by a married woman ... On taking a recognizance or bond ... On taking; bail, and taking same off the file and dehvering On a commitment ... ... ... On an application to produce Judge's notes ... On f^yftmimtig and signing enrolments of decrees and orders 0 10 0 0 10 0 1 0 0 0 0 0 10 2 5 5 0 0 0 0 0 1 0 0 0 0 0 10 2 5 5 0 0 0 0 0 3 0 0 3 0 0 Cairns, C. Q. Jbssel. COLBRIDGB. FiTzRoY Kklly. W. M. Jambs. Gboroe Mellish. G. Bramwbll. Nathaniel Lindlet. We certify that this Order is made with the concurrence of the Commissioners of Her Majesty's Treasury. Mahon. Row. Winn. ♦ 28. On a reference to the registrar ♦ 29. If the attendance of one or two mer- chants is required, to each merchant ♦ 30. In cases of ^eat intricacy and large amount, to the registrar and to each merchant ♦ 31. When the accounts to be investigated do not amount to £300, to the registrar and to each merchant, from ♦ 32. When the accounts to be investigated do not amount to j^lOO, to the registrar and to each merchant, from ♦ 33. On drawing the report and schedule in cases in which the claim exceeds £ 100 ♦ 34. On drawing the report and schedule where the claim does not exceed £100 ♦ 36. On taxing any bill of costs, per sheet not exceeding 10 folios, if but one party attends the taxation ... ♦ 37. On a receivable order £ «. d. 5 5 0 5 5 0 10 10 0 2 2 to 0 5 5 0 1 1 to 0 3 3 0 1 0 0 0 10 0 0 10 0 0 2 6 384 APPENDIX. A.D. 1875. ^ . . £ ». d. * 38. On a receipt for money or for papers ... 0 2 6 * 39. On every order for payment of money out of the registry ... ... ... 0 6 0 * 40. Poundage on rooneya paid out of the registry in any cause, if the sum does not exceed £50 ... ... ... ... 0 5 0 * 41. Poundage on moneys paid out of the registry in any cause, if it exceeds £60, but does not exceed £100 .. ... ... 0 10 0 * 42. Poundage on moneys paid out of the registry in any cause, if it exceeds £100, hut does not exceed £200 ... ... 10 0 * 43. For every additional £100 ... ... 0 10 0 * 44. No poundage is payable on the transfer of money from the registry to the naval prize account, or on transmitting it to the Court of Appeal in nursuance of a monition. * 48. Attendance at tne Bank to receive divi- dends, transfer, sell, or purchase stock or exchequer bills, or convert bills of exchange for suitors ... ... ... ... 10 0 * 52. On filing a claim for repayment of the excess of wages paid to a substitute hired in the place of a volunteer into the royal navy, including copy sent to the Admiralty 0 10 0 * 53. On the opinion of the registrar objecting to the claim ... ... ... ... 0 10 0 * 54. On certificate ordering payment of amount due, including the copy to be sent to the accountant-general of the navy ... 0 10 0 * 65. On recistering power of attorney for a Queen's ship generally, and copy thereof for Somerset House ... ... ... 1 10 0 * 56. On registering ditto specially ... 0 10 0 * 57. Poundage on moneys paid to the naval prize account, the same as on payment of moneys out of the registry in causes. ^ 58. Oil taxing accounts in naval prize matters, the same as on taxing bills in causes. * 59. On writing letters in regard to naval prize matters ... ... ... ... 0 10 0 * 60. On letters patent to a Vice-Admiral, or Judge of a Vice-Admiralty Court, issued under seal of the Court, besides the stamp duty, if any ... ... .. ... 5 0 0 * 61. On letters patent to an advocate, regis- trar, or marshal of a Vice- Admiralty Court, besides the stamp duty, if any ... ... 2 10 0 * 62. On every appointment of a coroner ... 2 0 0 * 6. On every bail bond ... ... ... 0 7 6 * 7. On every affidavit of justification ... 0 2 6 SCALE OP FEES. 885 £ #. d. A.B. 1876. * 11. On every notice of sale or notice of a — - — proceeding in an action of posseseion ... 0 10 0 * 12. On every notice of motion including the entry of the judge's order ... ... 0 10 0 * 15. On every notice to have a reference placed on the bill for hearing ... ... 0 10 0 * 16. On every writing for the attendance of Trinity masters at the hearing of any cause 0 10 0 * 21. On every proof, notice, agreement, or other document, on the same being filed, save an exhibit or other document pre- viously issued from the registry or the marshal's office ... ... ... 0 5 0 * 22. Exhibit, including the marking thereof 0 10 In thb Marshal's Office. * 64. On the execution of every warrant ... 2 0 0 * 65. On the execution of eveiy citation in rem 0 10 0 * 66. On the execution of eveiy attachment, for every person attached ... ... 10 0 * 67. On tne execution of every decree or commission of unlivenr, appraisement, or saxe ... ... ... ... ... j.v'v/ * 68. On the execution of any other instru- ment for which a fee is not specially pro- vided ... .. ... ... 10 0 * 69. On attending, appointing, and swearing appraiserb ... ... ... ... 10 0 * 70. On delivering up ship or goods to the purchaser agreeably to the inventory ... 10 0 * 71. On attending the unlivery of the cargo or sale of ship or goods, per dav ... ... 2 0 0 * 72. On retaining possession of a ship or of a ship and goods, to include the cost of a shipkeeper, if required, per day ... ... 0 5 0 * 72a. On attending the removal of a ship, per oay ... .«• ... ... ... ssi/u * 73. On every report as to the sufficiency of sureties ... ... ... ... 0 10 0 * 74. If the marshal or any of his substitutes is required to go a greater dintance than five miles from his office to perform any of the above duties, he will be entitled to his reasonable expenses for travelling, board, and maintenance. * 75. Poundage on the proceeds of any vessel or eoods sold under the decree of the Court, if the same do not exceed 501. * 76. Exceeding 501. but not exceeding lOOL 10 0 * 77. For every additional 100^, or part thereof ... ... ... ... 10 0 C C 38C APPENDIX. A.D. 1875. PART IlL ORDER AS TO THE TAKING OP THE FEES AND PER- CENTAGES IN THE SUPREME COURT OF JUDICA- TURE BY STAMPS, EXCEPT IN THE DISTRICT REGISTRIES (a). [2Sih October, 1875.] Stamps. Whkreas, by Section 26 of the Snpreme Court of Judicature Act, 1875, it is provided that the fees and percentages appointed to be taken in the Hish Court of Justice and in the Court ot Appeal, and in any Court to be created by any commission, and in any office which, is connected with any of those Courts or in which any Dusiness con- nected with an^ of those Courts is conducted, shaU, except so far as they be otherwise directed, be taken by means of stamps ; and further, that such stamps shall be impressed or adhemve, as the Treasury may from time to time direct ; and that the Treasury, with the concurrence of the Lord Chancellor, may from time to time make such rules as may seem fit for publishing the amount of the fees and regulating the use of such stamps, and particularly for prescribing the application thereof to documents from time to time in use or required to be used for the purposes of such stamps, and for insuring the proper cancel- lation of such stamps. Now, we, the undersigned, being two of the Lords Commisnonen of Her Majesty's Treasury, do, with the concurrence of the Lord Chancellor, hereby give notice and order and direct-— 1. That from and after the 1st November next, being the date fixed for the commencement of this Act, all orders and regmations now in force with respect to the use, proper cancellation, mode of keeping accoimte, and allowance of fee stamps in — The Admiralty Court, shall continue in force up to the beginning of the sittings to take place after January next, or they shall respec- tively be altered or annulled by any rules hereafter to be made and published in conformity with the Act 2. That the stamps to be used in the collection of fees .and pei^ centages payable under the order made in pursuance of the powers given by the Supreme Court of Judicature Act, 1875, bearinff date this day, shall, until further notice, be either impressed or adhesive as directed in any previous order ; and, in cases to which no previous order is applicable, shall be either impressed or adhesive, at the option of the parties b^ whom the fees are payable. 8. That, until we do order to the contrary, the dies heretofore in use for impressing stamps in any of the Courts affected by the said Act, and also the adhesive stamps heretofore in use, shall be available and valid for the takinc of the said fees and percentages, and may be used notwithstanding that new dies and stamps appropriated to the Supreme Court of Judicature may in the meantime have been issued « by the Commissioners of Inland Revenue, which will also be valid and available. (a) By order of October 24, 1877, fees are to be taken by stamps in the District Registries of Liverpool and Manchester, except in respect of pro- ceeds of a sale of a ship by order of the Admiralty Division. FEES IN SALVAGE CASEa 387 6. And, that where any of such fees are payable in redpect of any A.]> 1876. matter or thing to be done by any officer or in any office whatever of the Supreme Court of Judicature, and it shall not have been cus- tomary or may not be necessary to use any written or printed docu- ment or paper in reference to such matter or things whereon the stamp could be stamped or affixed, the party or his solicitor requiring sucn matter or thing to be done shall make application for the same by a prcBcipe, or short note in writingr or print, and a stamp denoting the amount of the fees so payable ahsJil be stamped or affixed to such prcBcipe or note. 6. That, where a fee is payable, but no directions are found in pre- vious orders as to the document to which the stamp is to be applied, it shall be lawful, until we do otherwise order, for any officer of the Snnreme Court whose duty it would be to see tnat the fee in question is auly paid by means of a stamp, to decide on what document such stamp snail be impressed or affixed. Qiven under our hands, Mahon. Row. Winn. I hereby signify my concurrence in the before-mentioned rules and regulations. Cairns, C. PART IV. FEES AND COSTS IN SALVAGE CASES HEARD IN A SUMMARY MANNER. Scale of Fbbs and Costs Allowed in Pursuanob of 25 & 26 Vict. 0. 63, 8. 69. Fees to Aisessora amd Umpires, To assessors, for each dajr's attendance and service in every case in which his assistance shall have been duly required ... ... ... ... ...110 To an umpire, when duly appointed by justices under sect' 461 of 17 & 18 Vict. c. 104, for his service as such, for each day's employment ... ... ...110 Provided the total sum allowed to such assessor and umpire respectively shall in no case exceed the sum stated in sect. 462 of 17 & 18 Vict. c. 104. Fees to be paid to the Clerks of Jttstices or Stipendiary Magistrates in England or Wales, And, if the above cases be heard by the judge of a County Court in England, a sheriff or his substitute in Scot- land, or the recorder of a borough, or chairman of quarter sessions in Ireland, to be paid to the registrar or clerk of such Court or to any other person acting in a like capacity. C C 2 0 8 0 0 2 0 0 1 0 0 0 8 0 0 2 0 0 8 0 0 2 S88 APPENDIX. £ t. (L A.1I. 1875. Oonyening joBticoB and asBessors and umpire to hear a case of salvage, for each person convened ... ...020 Notdces to parties to the inquiiy, of time of hearing a CooO .a. ... ■•* «•• ... ••• Summons and duplicate to each witness, if required To person serving a notice of summons Taking written examination of witnesses, per folio Copy of such evidence (if required), per folio ... Preparing award, per folio ... Fair copy of same, per folio ... Attending justices and if necessaiy also assessor and umpire, for their several signatures, a total sum of ... 0 5 0 Writing letters speciallv directed to be written by the justices or umpire, each letter ... ... ...0 2 0 FuA to TFi^nesKf . - Seamen and others of same class for each day's full at- venQance ... ... ■•. ••• ••• For any less time of attendance Master mariners, pilots, engineers, and all other witnesses for each fiill day's attendance For any less time of attendance Note. — Travelling expenses, such as are fair and mode- rate and have been actually paid, to be allowed, but the same not to exceed 3d per mile each way, in going to and returning from the place of meeting ; and all wit- nesses attending before justices and Courts, whose nsual place of abode is distant more than five iniles from the place of meeting, and who may be necessarily detained there more than one day, to be allowed no greater sum for each night they may be so necessarily detained, than 0 10 Fen to Practitionen. If any attorney be employed to conduct the inqniiy, &c^ he shall receive for each day's service ... ...110 But no fee shall be paid to him for more than two days' attendance in any case. 0 3 6 0 2 0 0 5 0 0 3 0 APPENDIX III. ADMIRALTY COURT RULES, 1859 (a). PART I. A.D. 1869 RULESS ORDERS AND REGULATIONS FOR THE HIGH COURT OF ADMIRALTY OF ENGLAND, MADB IV FURBUAVOB OF THB FR0VIBI0N8 OT THB ACTS OF THB 3 & 4 VICT. c. 65 AND 66, and 17 & 18 vicT. c. 78. 1. In tlie constraction of these roles, orders, and regulations, the fol- lowing terms shall (if not inconsistent with the context or subject- matter) have the respectlTe meanings hereinafter assigned to them ; that IB to say : — '* Judro " shall mean the jnd^ of the High Court of Admiralty of Ijigland, or any person lawfully authorized to sit in the said Court as judge. "Registrar" shaB mean the registrar of the High Court of Admiralty of England, or any deputy or assistant registrar of the said Court. ^ Marshal ** shall mean the marshal of the High Court of Admiralty of England, or any deputy or assistant marshal of the said Court ^ Counsel " shall mean any advocate, serjeant-at-law, or barrister- at-law, entitled to plead in the said Court. ** Proctor " shall mean any proctor, attorney or solicitor, entitled to Eractise in the said Court, or the party himself if conducting is cause in person. '' R^;istry " shall mean the registry of the High Court of Admiralty of Ejigland. " Cause '* shall mean any suit, action, appeal from award of justices, or other proceeding instituted in the said Court. ^ Name " of any person shall mean both the Christian name and surname of such person. (a) By the Judicature Act^ 1875, s. 21, these rules are in force, except in 80 far as they are inconsistent with the rules made under the Judicature Acts. Those which follow are such as still exist 390 APPENDIX. A.D. 1859. 2. These mleB, orders, and regulationB shall, if previously confirmed by Her Majesty in Council, come into operation on the Ist day of January, 1860, and shall apply to aU causes instituted on and after that day. 8. The practice of the Court in operation before the Ist day of January, 1860, shall continue in force, save in so for as it may be inconsistent with these rules, orders, and regulations. Entry qf Appecaran^e* 87. If the proctor intends to object to the jurisdiction of the Court, the appearance m^y be entered under protest. Bail. 89. If bail is to be given in the registry, the proctor shall, on filing in the marshal's office a pradpe^ receive a notice of bail, a copy of which shall be served on tne adverse proctor. 40. After the expiration of twenty-four hours &om the time when the notice of bail shall have been so served, if the marshal has reported as to the sufficiency of the sureties, the proctor shall be entitled to take up the marsIiaVs report. He shall then file in the r^stry a proBoipe with the notice of bail and the marshars report, and shall be informed at what hour the sureties may attend. 41. The bail bond shall be signed by the sureties, and shall be taken either before the resistrar, or, by the registrar's directions, before one of the clerks in the registry. 4d. Bail may also be taken under a special commission, or before standing commissioners to be appointed oy tJie judge ; but in every such case the sureties shall justi^. 48. A bail bond taken before a commissioner apnointed under a social or standing commission shall not be filed in tne registry until after the expiration of twenty-four hours from the time when a notice, containing the names and addresses of the sureties and of the com- missioner before whom the bail was taken, shall have been served upon the adverse proctor ; and a copy of the notice, verified by affi- davit, shall be filed with the bail bond. 44. A commissioner appointed under a special- or standing com- mission shall not take ban on behalf of any person for whom he or any person in partnership with him is actmg as proctor, attorney, solicitor, or agent 45. The delays required by the preceding rules in r^ard to the taking of bail may be dispensed with by consent of the proctors in the cause. 46. Proprty arrested by warrant shall only be released under the authority of an instrument issued from the r^;istxy, to be called a release. 47. A proctor at whose instance any property has been arrested, may, before an appearance has been entered, obtain the release thereof by filing a prcecipe to withdraw the warrant. ADMIRALTY COURT RULES. 391 48. A proetor may obtain the release of any prop^ty by paying A.D. 1889. into the regiatiy tbe sum in which the cause has been instituted. 49. Gaixo, arrested for the freiffht only, may be released by filing an affidavit as to the value of the freight, and by paying the amount of the freight into the registry. 60. In a cause of salya£;ey the value of the property under airest shall be agreed, or an affioavit of value filed, before the property is released. 61. A proetor who shall have filed a bail bond in the sum in which the cause has been instituted, or paid such sum into the r^stry, and, if the cause be one of salvage, shall have also filed an affidavit as to the value of the property arrested, shall be entitled to a release for the same, unless there be a ea/veat against the release thereof out- standing in the ** Caveat Release Book." 68. The release, when obtained, shall be left with a prctdpe in the marshal's office by the proctor taking out the same, who sbaU also at the same time pay all costs, charges, and expenses attending the care and custody of the property whi&t under arrest ; and the marshal shall thereupon release the property. Caveat Bdeaae Book, 68. A proctor in a cause desiring to prevent the release of any property under arrest, shall file in the registry a praseipef and there- upon a caveat against the release of the property shall oe entered in a Dook to be kept in the registnr, called the "Caveat Belease Book.'' 64. A party delaving the release of any property by the entry of a caveat shall be liable to be condemned in costs and damages, unless he shall show to the satisfaction of the judge good and sufficient reason for having so done. Caveat Warrant Book* 66. A party, desiring to prevent the arrest of any property, may cause a caveat against the issue of a warrant for the arrest thereof to be entered in the registry. 66. For this puipose he shall cause to be filed in the registry a prcBcipe, signed by nimself or his proctor, undertaking to enter an appearance in any cause that may be instituted against the said pro- perty, and to give bail in such cause in a sum not exceeding an amount to be stated in the pnecipef or to pay such sum into the registry ; and a caveat against the issue of a warrant for the arrest of the property shall thereupon be entered in a book to be kept in the registry, called the "Caveat Warrant Book." 67. A proctor, instituting a cause against any property in respect of which a caveat haa been entered in the "Caveat Warrant Book,'' shall, before filing the pracipe to lead the institution of the cause, serve a copy thereof upon the party on whoee behalf the caveai has been entered, or upon his proctor. 68. Within three days from the filing of the prwcipCj the partv on whose behalf the caveat has been entered shall, if the sum in which the cause is instituted does not exceed the amount for which he has undertaken, give bail in such sum, or pay the same into the registry. 392 APPENDIX A.D. 1869» 69. Aftei the expiiBtion of twelve days from the filing of the pm^ cipe^ if the party on whose behalf the caveat has been entered shall not have ^ven bail in such sum, or paid the same into the registry, the plaintiff's proctor may proceed with the cause by default, and on filing his proofs in the registiy may have the cause placed on the list for hearing. 60. If, when the cause comes before the judge, he is satiBfied that the claim is well founded, he may pronounce for the amount which appears to him to be due, and may enforce the payment thereof by monition and attachment against the party on whoee behalf the caveat has been entered, and by the arrest ot the property, if it then be or thereafter come within the jurisdiction of the Court. 61. The preceding rules shall not prevent a proctor from taking out a warrant for tne arrest of any property, notwithstanding the entiy of a caveat in the ^ Caveat Warrant Book;'' but the party at whose instance any property in respect of which a caveat is entered shall be arrested, shall be liable to be condemned in costs and damage^ unless he shall show, to the satisfaction of the judge, good and suffi- cient reason for having so done. 70. When an appearance has been given under protest, the defendant's proctor shall, within twelve days from the entry of such appearance, file his petition on protest, and the same rules shall apply to the pleadings on a protest as to the pleadings in a cause on its merits. AffidaviU (a). 82. Every affidavit filed in any cause shall be divided into short paragraphs, numbered consecutively, and shall be in the first person. 83. The name, address, and description of every person wiaVing an affidavit shall be inserted therein. 84. The names of all the persons making the affidavit, and the dates when and the places where sworn, shall be inserted in the jurat. 85. Where an affidavit is made by any person who i» blind, or who, from bis signature thereto or otherwise, appears to be illiterate, the person before whom the affidavit is made shall state in the jurat that the affidavit was read to the witness in his presence, and that the witness appeared to understand the same, and made his mark or wrote his signature in the presence of the person before whom the affidavit was made. 86. No affidavit shall he received which has been sworn before the party on whose behalf the same is offered, or before his proctor or a partner or clerk of the same. Written DepontionM, 87. Written depositions may be taken either before an examiner of the Court, or Wore a commissioner appointed under a com- tnission. (a) See J. A., O. XXXVIL r. 3. ADMIRALTY COURT RULES. 393 88. Witnesses may be produced for examination before an A.D. 1859. examiner within three miles of the Qeneral Post Office, London : but the proctor producing him shall, twenty-four hours at least before the witness is exammed, serve a notice upon the adverse proc- tor, stating the title and number of the cause, the name and address of the witness, the articles of the pleadings to which he is to be examined, the name of the examiner, the name of the interpreter, if any, and the day, hour, and place appointed for the examination. 89. No witness shall be produceo, either before an examiner or before a commissioner, at a greater distance than three miles from the Qeneral Post Office, London, save by order of the Court. 90. The examination in chieL cross-examination, and re-examina- tion of witnesses examined before an examiner or a commissioner shall be conducted either hj counsel or by the proctors, or their substitutes ; or the examination in chief may, on tne application of the proctor producing the witnesses, be conducted by the examiner or commissioner himself. In any case the examiner or conmiissioner may put any questions to the witnesses for the purpose of eliciting the truth as to him shall seem fit. 91. The 'fees of one counsel ma^ be allowed by the registrar on taxation for attending the exammation of witnesses before an examiner or commissioner. 92. When the examination of any witness is completed, the examiner or commissioner shall read over the deposinon to the witness, who shall thereupon sign the same ; and tiie examiner or commissioner shall certify at the foot thereof that the deposition has been read over audibly and distinctly to the witness, and that he has acknowledged the same to be true. 93. If the witness refuse to sign his deposition, the examiner or the commissioner shall certifv at tne foot of the deposition that the witness has so refused, and that the deposition is in accordance with the evidence given by the witness ; ana the deposition of the witness may thereupon be used at the hearing of the cause. 94. The judge may, on the application of either proctor in the cause, but at the expense in the first instance of the piarty on whose behalf the application is made, direct the evidence of the witnesses to be taken down by a short-hand writer or reporter appointed by the Court, who shall he previously sworn faithfully to report the evi- dence ; and a transcript of the shert-hand writer's or reporter's notes, certified bv him to be correct, shall be admitted to prove the oral evidence of the witnesses. 95. When the examinations of the witnesses have been completed, the examiner or commissioner shall file the depositions of the wit- nesses in the registry, with a special return setting forth the whole of his proceedings. References. 107. The following rules shall apply to references by the judge to the registrar, whether the reference tie to the registrar alone or to the registrar assisted by one or by two merchants. 108. Within twelve days from the day when the order for the reference is made, the proctor for the claimant shall file the claim and 394 APPENDIX. A.D. 1869. affidaTits ; and within twelve days from the day when the claim and affidavits are filed, the adrerse proetor ahall file his connteivaffidavitB. 109. From the filing of the coanter-affidavits six days only shall he allowed for filing any farther affidavits hy either proctor, save hy order of the judge, or by permission of the registrar. 110. Within three days from the ez|nration of the time allowed for filing the last afiidavits, the proctor for the claimant shall file in the registry a notice, with the stamps for the reference affixed thereto, praying to have the reference placed on the list for hearing ; and if ne shau not do so, the adverse proctor may apply to the Conrt to have the claim dismissed with costs. 111. At the time appointed for the reference, if either proctor be present, the reference may be proceeded with ; but the regis- trar may adjourn the reference from time to time as he may deem proper. 112. Witnesses maybe produced before the registrar for ezaminatioii, and the evidence shall on the application of either proctor, but at the expense in the first instance oi the party on whose behall the appli- cation is made, be taken down by a short-hand writer or reporter appointed by tiie Court, who shall be sworn faithfuUv to report the evidence ; and a transcript of the short-hand writers or reporters'^ notes, certified by him to be correct, shall be admitted to prove the ond evidence of the witnesses in an objection to the registrar's report. 118. Counsel may attend the hearing of any reference, but the expenses attending the employment of counsel shall not be allowed on taxation unless the registrar shall be of opioion that the attend- ance of counsel was necessary. 114. The registrar may, if he think fit, report whether any and what part of uie costs of the reference should he allowedi, and to whom. 116. The proctor for the claimant shall, within six days from ihe time when he has received a notice from the registry that the report is ready, take up and file the same in the r^istrf . 116. If the proctor for the claimant shall not take the stepe pre- scribed in the next preceding rule, the adverse proctor may take up and file the report, or may apply to the Court to have the claim dismissed with costs. 117. A proctor intending to object to the registrar's report shall, within six days from the filing of the report, file in the registry a notice, a copy of which shaU have been previously served on the adverse proctor ; and within a further period of twelve days he shall file his petition in objection to the report 118. All l^e rules hereinbefore prescribed respecting the pleadings and proofs in a cause, and the pnnting tha«oi,. shall, so far as they are applicable, apply to the pleadings, proofs, and ptinting^ m an objection to a report of the registrar. Taxation of Costs {a)^ 119; A proctor entitled to have his bill of costs taxed by the registrar shall file the same in the registiy, a copy thereof having (a) See App. II., Orders as to Costa and Fees, atUe, p. 860. ADMIRALTY COURT RULES. 895 been previously seryed upon the advene proctor (if any) ; and a A.P. 1809. notice shall be sent from tne registry of the time appointed for the taxation. 120. At the time appointed for the taxation the registrar may proceed to tax the bill, if only one of the proctors in tne; canae be present Sola by Or(kr of tiu CawrL 124. Every commission for the appraisement or sale of prop^ty under the decree of the Court shall, unless the judge shall otherwise order, be executed by the marshal or his substitutes. 125. The marshal shall pay into Court the gross proceeds of sale of any property which shall hiave been sold by him,, and shall at the same time oring into the registry the account of sale, with vouchers in support thereof, for taxation by the registrar. 126. Any person interested in the proceeds may be heard before the registrar on the taxation of the marshal's account of expenses, and an objection to the taxation shall be heard in the same manner ad an objection to the taxation of a proctof s bill of costs. Payment of Monies. 127. AH moBies paid into Court shall be paid to the account o£ ^ the Registni of the High Court of Admiralty" at the Bank of England, upon receivable orders to be obtained in the registry. 128. All orders for the payment of money out of Court shall be signed by the judffe. 129. Bail for latent demands shall not, unless the judge shall otherwise order, be required on the payment of money out of the registry. 180. A proctor desiring to prevent the payment of money out of the registry shall file a proBctpey and thereupon a caveat snail be entered in a book to. be kept in the registzy, called the " Caveat Payment Book." Claime in respect of VolunUers into ike Royal Navy. 131. A proctor desiring to obtain repayment, under the provisions of the Merchant Shipping Act, 1854, of the excess of wages paid to a substitute hired in the place of a seaman volunteering into the royal navy, shall file a clami, form of which may be ootained in the registiy. 182. If the claim be correct, he shall, on providing the proper stamp, receive a certificate for payment of the sum due. 183. If the claim be incorrect, he shall, on providing the proper stamp, receive the registrar's opinion iu writing. 184. If the proctor be dissatisfied with the opinion of the registrar, he may apply to the judge on motion to review the same, as pre- scribed by tne Merchant Shipping Act, 1854. 396 APPENDIX. A.D. 1850. Naval Prize. 135. Proctors, navy aj^ts, and other persons having claims against the proceeds of any pnze, stdvage, bounty, or other monies payable and aistribntable to and amongst tne officersand crews of HerlM^jesty's ships and vessels of war, and which may have been paid to the account of the Paymaster General at tibe Bank of England on account of naval prize, under the provisions of the Act of 17 Yict c 19, shall file such claims in the registry for taxation by the registrar. 186. They may apply to the judge on motion to review the registrar's taxation. 187. Orders for the payment of the sums which shall be found due in respect of such claims shall be signed by the registrar, and forwarded by him to the accountant-general of the navy. 146. If the proctor summoned do not appear at the time named in the summons, the cause shall be called on, and the judge shall there- upon make such order as to him shall seem fit. 147. If the proctor by whom the summons has been taken out do not appear to support the same at the time named in the summons, the judge may, on the application of the proctor summoned, dismiss the summons with costs. 148. If, before the time named in the summons, the summons be filed in the registry, with an indorsement tiiereon signed by the proctor summoned, consenting to an order being made in the terms and to the effect of the summons, the registrar may, if he shall think it reasonable and such as the judge would under Uie circumstances allow, make the order, and such order shall have the same force and effect as if the same had been made by the judge in person. 149. Either proctor may employ counsel at the hearing of any summons before the judge in chambers, if notice thereof has been given to the adverse proctor two days before the hearing of the summons. Notices. 160. All notices required b^ these rules or by the practice of the Court shall be in writing or printed, or partly in writmg and partly printed. 16L The service of a notice by a proctor may be effected by his clerk or agent, and, if required to be verified, shall be verified by afiSdavit. 152. Notices required to be left in the registry shall be signed by the proctor, or by his clerk for him. 158. Notices sent from the registrv may be sent by post, and the day on which the notice is posted shall be considered as the dav of the service thereof, and the posting thereof shall be a sufficient service. ADMIRALTY COURT RULES. 397 Consent of Proctan, A.1). 1859. 164. Service of a notice hy one proctor on another may be waived by consent. 155. Any agreement between the proctors in a cause, if in writing, dated and signed by both proctors, may, if the registrar think it reasonable and such as the judge would under the circumstances allow, be filed, and shall thereupon become an order of Court, and such order shall have the same force and effect as if the same had been made by the judge in person. Filing Documents, 156. No document shall be filed unless properly indorsed and stamped. 157. No document, of which a copy is required to be served on the adverse proctor, shall be filed in the registry without a certificate indorsed thereon, si|(ned by the proctor or by his clerk for him, to the effect that the document has oeen dul^ served. 158. If, before the expiration of the time allowed for filing any document, application cannot be made to the judge for an extension thereof, the re^trar may, upon reasonable cause being shown, extend the time for filmg the same ; but the time shall in no case be extended beyond the day upon which the judge shall next sit in chambers. 159. If a proctor, save by permission of the judge or registrar, do not file or serve on the adverse proctor, as may be reauired of him, any document within the time allowed by any of tnese rules, the adverse proctor shall not be compelled to receive the same, save by order of the judge. Minutes. 160. On filing any instrument or document, the proctor shall state, in writing, on a printed form to be obtained in the registry, called a minute, the nature of the instrument or document filed, and the date of the filing thereof. 161. A record of all minutes, and of all causes instituted and appearances entered, and of all decrees and orders of the Court, shall be entered in a book to be kept in the registry, called the '* Minute Book." ProRcipes. 162. Forms of the prcedpes required to be filed in the registry or the marshal's ofiice may be obtained on application in the registir or the marshal's ofiice respectively. They may be varied or altered by the judge at his discretion. 163. Every pracipe shall be signed either by the party, or by his proctor, or by a clerK of the latter for him. 164. If a prcecipe be not properly filled up and stamped, the registrar or marshal, as the case may be, may refuse to receive the same or to act thereon. 398 APPENDIX. A.D. 1869. InstrumentSy and the Service thereof, 165. Every instniinent which is signed bj the registrar and issoed under the seal of the Court shall be prepared in the registry, on a prascipe filed by the proctor applying for the same, and shall bear date on the day on which it is issued. 166. Every instrument shall be served within six months from the day on which it bears date, otherwise the service thereof shall not be valid. 167. No instrument except a warrant shall be served on a Sunday* Gkxxi Friday, or Christmas Uav ; and a warrant served on any of those days shall be deemed to have been served on the next following day. 168. Every warrant or other instrument required to be served by the marshal shall be left by the proctor taking out the same with a prcscipe in the marshal's office. 169. Instruments not required to be served by the marshal may be served by the proctor, his clerk or agent. 17d. The service of any instrument by the marshal shall be verified by his certificate. The service of any instrument by a proctor, his clerk or agent, shall be verified by an affidavit. SubpcBMU. 178. Subpcenas may be issued under the seal of the Court with the names of the witnesses in blank ; and any subpoena may contain the names of any number of witnesses. Caveats, 174. A ca^jeatj whether against the issue of a warrant, the release of property, or the payment of money out of the registry, shall not remain in force for more than six months from the day of the date thereof. 176. A ocweat mav be withdrawn by the party on whose behalf it has been entered or by his proctor ; but the pracipe to lead the with- drawal thereof shall, save by permission of the registrar, be signed by the same person who signed the praeipe to lead the entry of the caveai. 176. Application may be made to the judge on motion or by summons to overrule any caveat. Copies, 177. All copies of documents, whether issued from the registry or otherwise, shall be counted and charged for at the rate of seventy- two words per folio ; and every numeral, whether contained in columns or otherwise written, shall be counted and char;^ for as a word. 178. Office copies of documents furnished from the registry shall not be collated with the originals from which the same are copied, unless specially required. ADMIRALTY COURT RULES. 399 SearefuM, A.D. 1859. 170. The parties and proctors in a cause, and their clerks, may, while the cause is pending, and for a period of three months from the termination thereof, inspect free of charge all the acts, minutes, and documents filed therein. 180. Other persons may inspect the Court books on payment of the proper fee. IbL No person, except a party or proctor in the cause or a clerk of the latter, shall be allowed, save by permission of the judge, to inspect any of the documents in a pending cause. Seal of the Court. 1S2. All instruments and orders or decrees of Court, office copies, and other documents issued from the registry, shall be sealed with the seal of the Court. Office ffoun and Holidays, 183. Save on the holidays mentioned in the next following rule (a)^ the registry shall be open for the despatch of business on every day throughout the year m>m 10 a.m. to 4 p.ic., the marshal's office from 10 A.M. to half-past 4 p.m. (6). ComptUation of Time, 185. In computing the time within which an appearance shall be S'ven to any instrument, summons, notice, or other process, neither e day of the service thereof^ nor any of the holidays mentioned in the preceding rule, shall be included ; and the same rule shaU be observed in regard to the service and filing of any document (c). Forme, 186. The forms annexed to these Rules, Orders, and Begulations shall be followed as nearly as the circumstances of each case will allow (d). Fees. 187. The fees to be paid to the officers and practitioners in causes in the Court are set forth in the schedules hereto annexed (e). (a) Sundays, New Years Day, Good Friday, Easter Monday and Tues- day, Whit Monday and Tuesday, and Chrifltmas Day. (6) See J. A., O. LXI. (c) See J. A-, O. LVIL (d) For such as exist, see App. lY., pott, (e) For such as exist, see App. IL, aaUe, 400 APPENDIX. A.D. 1876. PART IL ADDITIONAL RULES OF COURT UNDER THE SUPEIEME COURT OF JUDICATURE ACT, 1875, AS TO PRINTING, 12th AUG., 1872. ORDER L Printing When any written deposition of a witness has been filed for use on depoaition, a trial, such deposition shall be printed, unless otherwise ordered. ORDER IL The rules of Court as to printing depositions and affidavits to be used on a trial shall not apply to depositions and affidavits which have previously been used upon any proceeding without having been printed. ORDER III. Other affidavits than that required to be printed by Order XXXVIIL, Rule 6, in the schedule to the Supreme Court of Judi- cature Act, 1875, may be printed if all the parties interested conseDt thereto, or the Court or judge so order. ORDER IV. The 3rd rule of the Order XXXIY., in the first schedule to the Supreme Court of Judicature Act, 1875, shall apply to a special case, pursuant to the Act of 13 & 14 Vict c. 35. {AnnuUed, April, 1880.) ORDER V. Where, pursuant to rules of Court^ any pleading, special case, petition of right, deposition, or affidavit is to oe printed, and where any printed or other office copy thereof is to be taken, the following regulations shall be observed : — 1. The party on whose behalf the dei>osition or affidavit is taken and filed is to print the same in the manner provided by Rule 2 of Order LVI. in the first schedule to tne Supreme Court of Judicature Act, 1875. 2. To enable the party printing to print any deposition, the officer with whom it is fil^ shall, on demand, deliver to such party a copy written on draft paper on one side only. 3. The party printing shall, ou demand m wnting, fiunish to any other party or his solicitor any number of printed copies, not exceeding ten, upon payment therefor at the rate of Id. per folio for one copy, and ^ per folio for every other copy. 4. The solicitor of the party printing shall give credit for the whole amount payable oy any other party for printed copies. 6. The party entitled to be furmshed with a print shall not be allowed any charge in respect of a written copy, unless the Court or judge shall othennse direct. RULES AS TO PRINTINO. 401 6. The {larty hj or on whose behalf any depositdon, affidavit, or A.]). 1876. ceitificate is filed, shall leave a copy with the officer with -— — ^^— whom the same is filed, who shall examine it widi the original and mark it as an office copy ; snch copy shall be a copy printed as above provided wneie such aepodtion or amdavit is to be printed. 7. The party or solicitor who has taken any printed or written office copy of any deposition or affidavit is to produce the same upon every proceeding to which the same relates. 8. Where any party is entitled to a copy of any deposition^ affidavit, proceeding, or document filed or prepared oy or on behalf of another party, which is not required to be printed, such copy shall be fiumished by the party by or on whose behalf tne same has been filed or prepared. 9. The party requiring any such copy, or nis solicitor, is to make a written application to the party by whom the copy is to be fumishea or his solicitor, with an undertaking to pay the proper charges, and thereupon such copy is to be made and ready to be delivered at tne expiration of twenty-four hours after the receipt of such request and undertakmg or vrithin such other time as the Court or Judge may in any case direct, and is to be furnished accordingly upon demand and payment of the proper charges. 11. It shall be stated in a note at the foot of every affidavit filed, on whose behalf it is so filed, and such note snail be printed on every printed copy of an affidavit or set of affidavits, and copied on every office copy and copy furnished to a party. 13* The name and address of the party or solicitor by whom any copy is fumlBhed is to be endorsed thereon in like manner as upon proceedings in Court, and such party or solicitor is to oe answerable for the same being a tnie copy of the original or of an office copy of the original of which it purports to be a copy, as the case m^ be. 13. The folios of all printed and written office copies, and copies delivered or furnished to a party, shall be numbered con- secutively in the margin thereof, and such written copies shall be written in a neat and legible manner on the same paper as in the case of printed copies. 14. £i case any party or solicitor who shall be required to furnish any such written copy as aforesaid shall either refuse or, for twenty-four hours nom the time when the application for such copy has been made, neglect to furnish the same, the person oy whom such application shall be made shall be at liberty to procure an office copy from the office in which the original shall have been filed, and in such case no costs shall be due or payable to the solicitor so making default in respect of the copy or copies so applied for. 15. Where, by any order of the Court (whether of appeal or otherwise) or a Judge, any pleading, evidence, or other document is ordered to be printed, the Court or Judge may order the expense of printmg to be borne and allowed, and printed copies to be furnished by and to such parties and upon such terms as shall be thought fit D D 4»02 APPENDIX. A.D. 187fi. PART III. THE CONSOLIDATED COUNTY COURT ORDERS AND RULES, 1876, WITH FORMS AND SCALES OF COSTS AND FEES.* ORDER XIX 1. Every order for the payment of money may be enforced in the same manner as a judgment for debt or damages is enforced under section 94 of the Coun^ Courts Act, 1846. Whore action may be tried. Undertak- soUcitor for expenses. Sittings of tiie Court in Admiralty. Oommenoe- ment of action. Notice of commence* ment of action to be given to Consul in certain ORDER XXXIIL Admiralty AcTioNa Sittings of ihe Court. 1. The Judge ma^ try or partly try the action at any place within the Admiralty district of the Court 2. Where application is made to the Judge for the trial or nart trial of an Admiralty action at a place in which a County Court aoes not sit, the solicitor shall file a pracipe undertaking to provide at his expense a place to the satisfaction of the Judge in which the action may be tried, and pay the necessary expenses of the Court and officers so attending. 8. The days of the sitting of the Court shall be those appointed for the transaction of the ordinary general business of the Counly Court held in the city or town mentioned in the name of the Court, or such other days as the Judge may from time to time appoint for the trying of an Admiralty action where, from the detention of a vessel or otherwise, a prompt determination of the action is desir- able. Institution of Action. 4. A solicitor desiring to commence an Admiralty action shall file a pneeipe which shall state the nature of the action, me name, address, and description of the party in whose behalf it is instituted, the name of the solicitor, and an address within three miles of the court- house at which it shall be sufficient to leave all instruments and documents in the action required to be served upon him, and it shall also state the name of the owner or owners or other person against whom the action is instituted, or it shall state that the action is instituted against the vess^ or other property to which the action relates. 5. In an Admiralty action for wages against the owners of a foreign vessel, notice of the commencement of Uie action shall be given to the consul or vice-consul of the state to which the vessel belongs, if there be one resident within the district of the Court, and a copy of the notice shall be annexed to the pracipe. * The orders are inserted only when they relate to Admiralty actions. COUNTY COURT ORDERS. 403 SummoTU. A.D. 1875. 6. Immediately upon the filing of the prctdpe the re^strar shall Summona. issue a summons for service by the solieitor, or, if so required, by ^e bailiff of the Court. 7. Where the vesj^el or property to which the action relates is Sorvice of within the district, the summons may be senred by delivering it to ■"■"'*^°** the person who is at the time of service apparently in chaive of the vessel or property, or, if there is no person in charge, by naiung it on the main mast or the single mast of the vessel ; and m other cases the summons must be served personally upon the defendant, unless the Judge, or in his absence the registrar, shall upon facts duly verified upon affidavit allow of substituted service. Appearance in Admiralty Aetiom. 8. A solicitor desiring to enter an appearance in an action shall Appeannce. file a prcBcipej and thereupon an entry of his appearance shall be made in the Admiralty suits book. 0. The prcFcipe shall state the name, address, and description of Contonto of the party on whose behalf the appearance is entered, the name of the f^^^t^ solicitor, and an address within three miles of the court-house at which it shall be sufficient to leave all instruments and documents in the action required to be served upon him. 10. Any person claiming to have an interest in the vessel or pro- P«non perty, whether cognizable by the Court or not, mav intervene for the lo^l^inay purpose of having the case transferred to the High Court of Justice, inteireno. 11. Upon the arrest of any vessel or property an appearance may Appearance be entered the same as upon the service of the summons. ^ arrwt 12. Where an appearance has been entered the registrar shall upon Notice of application by either plaintiff's or defendant's solicitor give to each ^ ^ ^'^^^ solicitor in the action, and where no appearance has been entered then to the plaintiff or his solicitor, a notice under the seal of the Court, stating the day upon which the action has been directed by the Judge to be heard. Arreet, 13. Where, after the commencement of an Admiralty action, it is ASdaTitto desired to arrest any vessel or property, the solicitor must file an ^ ^^' affidavit stating the facts which render it probable that it will be removed out of the jurisdiction of the Court. 14. In an Admiralty action for necessaries or for wages the when national character of the vessel shall be stated in the affidavit Sf^Slff to 15. Where upon the filing of such affidavit the registrar, in the be stated, absence of the Judge, is satisfied with the evidence, he may issue a When war- ¥rarrant for the arrest and detention of the vessel or property, ™»it'<*' and where he is not satisfied he may require further evidence to be i^^ ™*^ adduced. 16. A warrant of arrest may be executed on Sunday, Good Friday, when war- or Christmas Day, as well as on any other day. Srotmay be executed. Beletue of Property, 17. Where in an Admiralty action the amount sued for is paid R«iMMon into Court, together with costs, or the security completed, or where EScvMirt D D 2 404 APPENDIX. A.D. lt75. the plaintiffs solicitor usually requiiM it, the registrar shall deliyer to the solicitor an order directed to the high hailiff of the Co«rt| authorizing and directing him, upon payment of all costs, chaiges, and expenses attending the custody of the property, to release it forthwith. Rcimae In X8. Notwithstanding the last preceding rule, the property, in an lutum!' Admiralty action for salvage, shall not be released until its value has been ascertained either by affidavit, by agreement, or by tsppaaaa- ment, save by consent of the plaintiff or his solicitor. Tranrf&r of Action. Transmis- IQ. Where an action is transferred to the Hieh Court of Justice by cTOdingS^Si order thereof, the registnir of the Court, upon the service of the order transfer to of transfer, shall send by post the proceedings to the proper officer of High Court 8uch Court. The Uke on 20. Where a Court orders the transfer of an action to the High ^^j^OT^ Court of Justice or to another Court, the registrar ahall send by inst Court the order, together with the proceeding!^ to the registrar of the ^^ Court of Justice or to the Court to whicn it is transferred. Second or Oron Adion. Coits In 81. Where it shall appear to the Court that the plaintiff in an ^hS^ Admiralty action (hereafter called the second action), was or is the fused. defendant in an action (hereafter called the first action) in another Court arising out of the same transaction, and that he did not pro* pose to the pudntiff in the first action that by agreement juriadietion should be siven to the Court in which the first action was instituted, to hear ana determine the second action, the Jnd^ may refuse the plaintiff in the second action his costs if he shall think fit. FirBt and 28. Where a second or cross action for danuu^ has be^i instituted tions may ^7 ^ defendant in an action for damage, and the second action has be tried been instituted, by agreement or otherwise, in the Court in which the ^°8«^er- first action was instituted, or has been transferred to the said Court by order of any other Court, the Court may direct that both actions may be tried at the same time and upon the same evidence. Prooeedingi 538. Where a judgment or order has been obtained against an un* iSiSatun- kno^"^ defendant, toe vessel or property to which t^e action relalea )SSmx de-' shall not be taken in execution, out it may be arrested and detained fendant under the provisions of section 22 of the County Courts Admiralty Jurisdiction Act, 1868, or kept under arrest, if already arrested. Proceedings 534. Where an order has b^n obtained in an action against an im- o?im^own ^^^^ defendant, and the name of the defendant is subsequently def^dant^ ascertained, the adverse solicitor may deliver to the registrar a pme^ stating the name, address, and description of the defendant, and thereupon the registrar shall issue to the solicitor, or if required to the bailiff for service, a notice of the judgment or order, stating that if the defendant does not within four clear days from the day of ser* vice deliver a prcBcipe to the registrar applying for a re-hearing of tiie action, the vessel or-property to which the action relates will be sold in ezecuticm. COUNTY COURT ORDEKS. 405 86. The notice shall be served peraonally npon the defendant, A.B. 1875. nolees the Jndge, or in his absence the le^istrar, snail upon facts duly Z^Z ZT" verified upon affidavit allow of substituted servioe. notices defendant. Exteution agaimi VemL 86. Where under a wanant of execution a vessel is seized, the ProoaedingB ah bailiff shall, before selling the same^ cause an inventoir and ^^*^~ nation thereof to be made by an i^ppraiser, and the vesael shall aguixut a not be sold for leni than the appmised value thereof, except by order ▼esseL of the Court) and lOs. per cent, on the appraised value of the vessel, with reasonable expenses for travflling and maintenance, if the vessel is beyond three miles from registrar's office, shall be allowed to the appraiser. 87. On the completion of the sale the high bailifif shall pay the Proceeda of proceeds arising therefrom into Court, return the warrant, ana file an jSd tato account of the sale and of his fees thereun, signed by him, together court with the certificate of appraisement sigued by the appraiser. 88. On the completion of the purchase the high bailiff shall deliver DeUrory up the property to the purchaser, and if reauired so to do shall exe- jj HJS^*'^ cute a bill of sale to him at the expense of tne purchaser. chaaer. Transfer of Sale, 89. Where the vessel has been arrested or has been seized under a Proceedinga warrant of execution, and the sale of the vessel has been ordered to ^J^S?*^" be transferred to the High Court of Justice, the vessel shall be re- tained by the high bailiff until the marshal shall, by order of the High Court of Justice, take possession thereof. 80. A solicitor desiring that the sale of an^r vessel or property Application should be conducted in the High Ck)urt of Justice, may at any time of'ml^Sd!^ after judgment nve security to the amount of ;£10. and deliver to the in^foraaie. registrar an application for an order for the transfer of the proceed- ings for sale to the said Court 81. The registrar shall transmit such application to the Judge for AiipUcation his order thereon, if the Court be not sitting, and shall in any case mittodto^ certify on the application that the security lor costs has been given. Judge. Naitice of D^encCj in CoUinon. 88. Where in actions for damage bv collision the defendant intends Motioe of to set up as a defence that the vessel was by compulsion of law in 2S^m for the chiu^ of a pilot, he should give notice thereof to the adverse damage by solicitor as soon after the service of summons as may be, and if he «>ii*«ion- shall fail to give such notice the Judge shall, in exercising his dis- cretion as to costs, consider what enect the non-delivery of the notice has had in the action. Tenders. 88. A solicitor desiring to make a tender shall give a notice to Notice of the adverse solicitor of the terms and amount of the tender, and shall ^§^!f^ pay the amount into Court, and deliver a prcedpe. 4<)(> APPENDIX. A.B. 1876. 84. Witliin forty-^ight honn from the payme&t the adverse Noticoof solicitor shall file a notice stating whether ne accepts or rejects accepunce the tender, and, if he sh^ not do so, he shall be deemed to nave of teuder. rejected it. Payment cut of Cottrt, P^y^eat 86. Money ordered in an Admiralty action to be jpaid oat of Court to loiiditOT^* ™*7 ^ P*^^ ^ *^® solicitor without the production of a power of attorney from the party entitled to receive the money, unless the Judge shall otherwise order. Retidnerof 86. Where more than one action has been instituted against a S>mt^£re ^®*^^ ^' *°y property, and the same has been sold, the proceeds thereof more than shall be retained in Court, to abide the decision, of the Court in the one action, various actions, unless the Judge shall otherwise order. AppraiBement, Appraise- 87. The registrar may, on the application of either solicitor, and °"«»t» whether before or after judgment, order any property under arrest to be appraised. Records of the CourL initpoction 88. The solicitors in an action, their clerks, and the parties them- of rocorda. gelves, may, while the action is pending, and for one year after its termination, inspect, free of charge, all the records in the action. Who on- 89. In a penoiug action no person other than the solicitor or his »*^*^ion ^ clerk, or the party in the action, shall be entitled to inspect the records ^^ig pen- ui the action without the permission of the registrar, dency of 40. In an action which is terminated, any person may, on deliver- T^wt ^°^ ^ *^® reigistrar a prcedpe, and on payment of the proper fee, LxmiEUBititti Uispect the records in the action, of action. Copies, Office 41. Any person entitled to inspect any instrument or document in oopioa. gj^ action shall, on delivering to the registrar a prem|>e, and on pay- ment of the proper charges for the same, be entitled to an office copy thereof. Assessors, FiBymenton 49. Every solicitor requiring the Judge to be assisted by two fOT^MM»aon c^^iMon shall, at the time of delivering the prcecipe, pay to the by party, registrar the sum of two guineas, if the amount claimed does not ex- ceed i£100, and four guineas if it does exceed that amount, and such pavments shall be considered as costs in the action, unless otherwiee ordered by the Judge. The like, on 48. Where the Jud^ requires the assistance of two assessors, the oHudv?^" above fees shall be paid bv the plaintiff or his solicitor before the trial, and shall be costs in the action, unless otherwise ordered by the Judge. ^JJ^2 44. Where an action is adjourned, the plaintiff shall pay the Jouramont. A»H!Mors' fees for the day of adjournment fortiiwil^ after the order of adjournment ia made by the Courts COUNTY COURT ORDEBS. 4()7 45. Upon the delivery of the aforesaid prwcwe or upon' the order A.D. 1875« of the Judge as last aforesaid, the registrar shall select from the list of assessors the names of two persons whom he may, having re- aaa^i^ ference to the nature of the action to be tried, consider most capable of assisting the Judge in trying and determining it, aud shall seud to , each of such persons by post a summons in the form annexed. 46. The registrar of the Court shall pay to every assessor for each Payment to day's attendance and service in every action one guinea or two "'*«"^"- guineas, according as the amount claimed in the action does or does. not exceed ;£100. ORDER XXXVI. Costs. 1. All costs shall be taxed by the registrar of the Court, subject to Taxation of the review of such taxation by the Judge. ®<***»- 2. In taxing the costs incurred in ihe High Court of Justice pre- Taxation of vious to the transmission of the action to the County Court under ^^g^^yict. sections 7 or 10 of the County Courts Act, 1867, the registrar shall c. 142, aa. 7 tax the same according to the scale of costs and fees in use in such aad lo- High Court of Justice. 8. The costs of the witnesses, whether they have been examined or Coeta of wit- not, may, unless otherwise ordered by the Court, be allowed, though n«"e8. they have not been summoned, bat their allowance for attendance shall in no case exceed the highest rate of the allowances mentioned in the scale in the schedule. 4. Seamen necessarily detained on shore for the purpose of the Componsa- action shall be allowed such remuneration as the Court may think ^^^^ reasonable compensation for their loss of time. 6. Money paid into Court on a judgment shall be appropriated first Appropria- in satisfaction of the Court fees and costs, and afterwards in satisfac- «^° ^^ ^^ tion of the original demand. into Court. 6. Costs of warrants against the goods, whether executed or un- Coeta of executed or unproductive, shall be allowed against the defendant, wammta. unless the Judge shall otherwise direct. 7. No possession fee shall be payable where an execution is paid Poaaeeaion out at the time of the levy ; but, U the officer shall necessarily remain J^^^ in possession more than half an hour, and the execution shall be paid vict c. »6, out on the day of levy, the possession fee for that day shall be »• loo. charged. ., , ^i« i. j ^ i. 8. No appraisement is to be made until the fifth day of the Appraiae- hailiff s holding possession of the goods under an execution, unless °^«"*- where the goods are of a perishable nature, or are sold at the request of the party before the expiration of four days, or unless the goods are removed. , 9 Costs in actions under the County Courts Act, 1856, s. 23, shall Taxation of be tkxed according to the scale of taxation used in the High Court of ]^Sm Justice, so far as it is directly applicable ; and, where it is not so ap- Vtet c. los plicable, the principle of that scale shall be followed. .^■* 11 In actions where the claim exceeds jE20, and the plaintiff Coata in 408 APPKNDIX. AJI. 187f . leooven lest than £20, he shall, if the Judge shall 00 order, he entitled to reooyer costs, aocoidinff to the scale relating to actions above £20, and the defendant^ if successful, shall be entitled to recover costs according to the said scale, nnlesa the Judge shall otherwise orier. 12. Where from the amount, or from the nature of any defence or counterclaim, the costs in an action for recovering or enforcing the same would be taxed upon a higher scale than that applicable to the action in which such defence or counterclaim is made, then the costs shall be taxed upon such higher scale. Cuts where 13. Where the plaintiff recovers less than the amount of his claim, ^Im^Bim BO as to reduce tne scale of court fees and costs, he shall pay the thaa he difference, unless the reduction shall be caused by a set-offL where claim exceeds £20. Ooeteaf counter- deinu Btattry of MetropoH- tan Courts. Party may act by sou- dtor or agent Sendee on ■olicitor deemed eer* ▼ice on party. Practice on eenrloeby solicitor. Notice of interlocu- tory pro. ceedings maybe aerredby solicitor. ORDEB XXXVII. 6. Where a p«non desires to enter a plaint in a Ck>uit within the district of which he does not reside, he may, instead of attending in person or by agent at the Court, transmit, hee of cost, to the registrar, the following : — (1.) A prcecipe showing the name, address, and description of the plaintiff and oefendants, the cause of action, and the amount claimed ; and, where the claim exceeds 40iL, as many copies of the statement of the particulars or cause of action as there are defendants, and an additional copy to file. (2.) A post office order for the fees TNiyable upon the entry of the plaint, payable at the poet office of the court town. (3.) An envelope addressed to himself, with a penny postage stamp thereon. And upon the receipt of the above the registrar shall enter the plaint, and forward the plaint note to the plaintiff in the addressed envelope. 7. For the purpose of the two foregoing rules the several districts of the metropolitan Courts shall be considered inter m as one district only. 8. Where by these rules any act may be done by any paity, such act may be done either in person or by his solicitor or agent, if it can be legally done by an agent 9. Where a parW acts by solicitori service of any proceeding or document upon such solicitor, or delivery of the same at his office, or sending the same to him by post, shall be deemed to be good service upon the party for whom such solicitor acts, as upon the day when the same is so served or delivered, or upon whicn in the ordinaiy course of post it would be delivereo, except in cases where by these orders personal service upon a party is required. 10. Where a solicitor undertakes the service of any process, he shall make the necessary copies of each process, and the regi^rar shall seal the same and return them to the solicitor for service. 11. Any notice dilating to any interlocutory proceeding may, by leave of the registrar, be served by the solicitor of the party re- quiring to effect such service; but the costs of such service and proof thereof shall not be allowed, except by order of the Couzl COUNTY COURT FOBMS. 409 52. A note of eveiy judgment in an Admiralty action aball, within AB. 18T5. ten days of the making thereof be transmitted by the registrar to the registrar of County Courts Judgments in London, who shall register the same as heretofore. ADMIRALTY FORMS. 243. Pbjboipb oh Entry of Plaint. Admiralty Jurisdiction. In the County Court of , holden at I, L. if., solicitor, hereby desire to commence an action for [state the nature of ike euUy on behalf of [sAate name, addreee, and deeerip' tion of pkMUif] agamst [if the owner or owners he not known, stale we owner or owners unknown of the property to which the aeUon rdates, deeeribing its name and luuure and where it then is : if known, stale name, address, and description of party proceeded against, the name and nature of the property to which the suit relates, and where tit if], in the sum of [state sum in letters'] pounds. Aud I consent that all instru- ments and documents in the said action may be left for me at [state address], [cM. where so desired, and I require the summons to be served by the oailifF of the Court]. Dated the day of , 18 * [To be signed by the party, his solicitor^ or his dark for him,] 244. PaAciPE FOR Permission for Suit to bx hsabd at a Special Place; Admiralty Jurisdiction. In the County Court of , holden at [TiOe of Action.] I, X.Z,, solicitor, do pray that permission may be granted for the hearing of this suit at utere state the name of the place at which and deseripiion of the bwUcRna in which it is desired that the sitting shoM be held, and if the buUSing is not one in which the County Court ordinarily sits, add, and I undertake to hire the use of the said build- ing at my expense, to be allowed as costs in the suit if the Court shall allow thereof]. Dated this day of , 18 . [To be signed by thepartf, his soUsUoTf or his derkfcr him,] 410 APPENDIX. A.O 1876. 245 Summons. Admiralty JuiiBdiction. In the County Court of , holden at (Seal) Whereas an action for [state the nature of Ike action] has been instituted in this Court, on behalf ot A, B,oi , against the owner or owners unknown of the [state description of vessilL called the [name of vessd\ (whereof C D, is now or lately was master), [where action is against owner or owners unknown of vessel and freight addy and the freight due for the transportation of the cargo now or lately laden therem ; or, where the action isagaifhst the owner or owners unknown of vesself cargo, and freight, add instead thereof, and the caKo now or lately laden therein, together with the freight due for the transportation thereof], in the sum of [state sum in letters^ pounds. You are hereby summoned to enter an appearauce in the said action within four clear days of the service hereol You are also warned that, if you do not enter an appearance as aforesaid, the Judge of this Court will proceed to hear and de- termine the said action, or to make such orders therein as to him shall seem fit. Dated this day of , 18 . Registrar of the Court. To the owner or owners of the [state description and name ofvessd], and all persons who nave or claim to have any right, title, or interest in the paid vessel. N.B.— The solicitor for A, B. is , of [here stale the address given in the profcipel, 246. Summons. Admiralty Jurisdiction. In the County Court of , holden at A, B,, plaintiff [(iddress and description]. (7. D,, defendant [address and description], (Seal) Whereas an action [state nature of suit] has been institntea in this Court on behalf of the plaintiff against you in the sum of [state sum in letters] pounds. You are hereby summoned to enter an appearance in the said action within four clear days of the service hereof. You are also warned that, if you do not enter an appearance as aforesaid, the Judge of this Court will proceed to hear and determine the said action, or to make such orders therein as to him shall seem fit Dated and sealed this day of 18 . Registrar of the CourL To the riefendant. N.B. —The solicitor for the plaintiff is of [here state the address given in theprcscipe]. COUNTY COURT FORMS. 411 247 A.B. 1870. WA&RA.1IT or Abrest and Detkntion. Admiralty JurisdictioiL In the County Court of , holden at [TitU of Action,] {Seed.) Whereas an action has been instituted in this Court on behalf of A. B, of , against the owner or owners of [stcUe description and name of vessel or property], in the sum of [state sum in letters] pouuds. ThetHs are therefore to require and order you to arrest the said and to keep the same under safe arrest until you shall receive further orders from this Court Giyen under the seal of the Court this day of , 18 . By the Court To the High Bailiff of the said Court, and others the bailiffs thereof. Registrar of the Court 248. Bail Bond. Admiralty Jurisdiction. In the County Court of , holden at [Title of Action.] Whereas an action for has been instituted in this Court on behalf of A. B of , against Now therefore we [state namesy addresses, and description of sureties] joinUy and seyerally submit ourselves to the jurisdiction oi the said Court, and consent that if he [or they] the said shall not pay what may be adjudged against him [or them] in the said action, with costs, execution may issue forth against us, our heirs, executors, and administraton, our goods and chattels, for a sum not exceeding [stoic «um in Utters] pounds. [Signatiwres of Sureties^ The bail bond was signed by the said , and the sureties, the day of , 18 . Before me, Begistiar of the Court or one of his cfeiks. 412 APPENDIX. A.D. ISTflL S49. Obdbb of Rslsasb. Admiralty Jnrifldictioii. In the County Court of ^ holden at [TiiU of Aaian.] (Seal) Tou are hereby authorised and directed to release the now under arrest of this Court by virtue of its warrant, upon the payment of idl ooste^ chaigea, and expenses attending the coitodj thereof Given under the seal of the Courts this of , 18 . By the Court Registrar of the Court. To the High Bailiff of the said Couit| and others the bailiffs thereof. 260. Pracipe to bntbb ak Affxabanck. Admiralty Juiisdiction. In the County Court of « holden at [TiOe of Action,] I, R, S.y solicitor, hereby enter an appearance on behalf [itaU nanie, address, and description of party], in the action for {stats nature of action], which has been instituted in this Court on behalf of [stats name, address, and description ofpMniif] against r«to. 1875. 9 he having a^preed to pay [or tender] the aune in settlemei of the ckim of the plaintiff [or. IM. ^6.^ The value of llie property nved. (c.) The risk incaned by the ealyon. (d.) The value of any of the property by the use of which the senrioea are renderod and toe danger to which it was ex- posed, (e.) The skill shown in rendering the Bervioes. (f.) The time and labour occupied. Where all these concur in the performance of any salvage service the reward ought to be large ; and in proportion as fewer of these ingredients are to be found, so should the reward be lesa. But, where scarcely any or only the last of them exist, the service can hardly be denominated a salvage service ; it is little if nothing more than mere work and labour, ana should be rewarded accordingly. ^ip^ of (a.) In estimating the degree of danger from which the lives or *^***'* property were rescued, regard should be had to, — The damage sustained by the vessel itself; The nature of the locality from which she was rescued ; The season of the year when the services wero rendered, and, if the weather at the time was not tempes- tuous, the probability or improbability of its be- coming so; Ignorance or knowledge (as the case may be) of the locality on the part of the master and other persons on botud the vessel saved. Vfti^J^ (6.) The value of the property saved is also an essential ingredient £|[!^Sdr^ ^ ^^® amount or romuneration to be awarded. If the value of the property be small, the roward must be small ; if large, a greater roward may be given, for, in proportion to that value is the herufit to the owners, which is one of the j>rimaryconsiderations in settling the amount of remunera- tion. The amount of the rowara should not, however, in- crease in direct proportion to the value of the property. The object of the Courts is to sive an adequate rowara ; Courts of Admiralty, theroforo, luways give a smaller pro- portion when the property is large. As a general rule it may be stated that Courts of Admiralty very seldom, if ever, give moro than half the value of tlie property saved. This should, in fact, be regarded aa the maximuDL except in some few cases whero the services have been highly meritorious, and the value of the property saved is but small. ^"*^db" ^^*^ T^® '^ incurred by the salvors themselves, if necessarily ^^n. ^ incidental to the performance of the service, is the most im- portant ingredient in estimating the amount of salvage to De awarded. The value of human life is that which b and ought to be principally considered in the preservation of other men's proper^ : and if this be satisfactorily proved to have been hazarded, the salvors should be most ubenJly re- warded ; and, when not only risk has been incurred, bat actual loss of life has ensued, a still larger amount of salvage should be given. Value of and (d,) The value of the property by which the services have been BOARD OF TRADE INSTRUCTIONS (SALVAGE). 421 rendered is not an unimnoitant element in estimating the A.B. 1865. reward to be given, provided it has been exposed to risk and '~~' danger in the performance of the service. The greater the w^y^iMd' risk incurred by the salvors or their property, the greater ^rendering should be the remuneration. It is from the same consider- ^J^^^ ation that no salvage is allowed for the use of her Majesty's ships, or the consumption of stores and articles belongiog to her Majesty, as even were the vessel totally lost in rendering the services the loss would not £bJ1 on the salvors, (e.) The skill and knowledge of the salvors is an essential ingre- ^cuiahown dient in a meritoriousialvace service. The same skill, iSw- ^ ■^™- ever, that would be reouired from duly licensed pilots, is not to be expected £rom oroinary smacksmen or boatmen assum- ing the management of vessels in cases of difficulty ; but to entitle such salvors to reward it must be shown that they possessed skill commensurate with their vocation and con- dition in life, and adequate to the duties they undertook to perform. Wnere the services have been performed by pilots, care should be taken to ascertain that the services were itally of a salvaoe nature, and that the vessel was actually in distress; ror otherwise they must be rewarded merely as pilota^ The rate of remuneration to pilots has, under the provisions of the Pilot Acts, been fixea on a liberal scale, and in return they are bound to afford their assistance in all weathers, except at the risk of their lives. It is, however, a settled doctrine of the Court of Admiralty, that pilots may claim as salvors in circumstances of great danger, or where other than mere pilotage services luLve been required of them. No pilot is bound to take charge of a vessel in distress for mere pilotage reward ; and if he do take charge of a vessel so circumstanced he is entitled to a salvage remuneration. In all sudh cases, the skill and knowledge possessed by persons of this class fedrly entitle them to a liberal reward. 95. When the services also have been rendered by steam vessels, seirioe by they are always considered as entitled to a very liberal reward, not Jj^. only on account of the great value of the property which is thereby **"** ' exposed to risk^ but because of the ^reat skill and power of vessels of that description, and the expedition with which services are generally performed by them. Steam vessels are usually fitted out at ffreat expense, and they are so peculiarly adapted to rescue otner vessels from positions of great oao^r, from which no human power could save them, that they are entitled to be liberally rewarded. When, however, an agreement has been made by a steam vessel for the performance of an ordinarv towage service^ such an agreement should not be lightly set aside on account of any un- favourable chai^ in the weather, or of any trifling circumstance occuni^g not materially affecting the performance of the stipulated service. If, indeed, it should be discovered that the vessel towed had been damaged previous to the agreement being made, so as materially to increase the difficulty of towins her, and that circum- stance had been kept from the knowledge of those in charge of the steam vessel, the agreement would not he binding, and a claim of 422 APPENDIX. A.D. 1866. PrlndploB on which apportlon- ment ia to be made. Bovenue cruinen and coastguard. Bmacksmen boatmen, and flflher- men. salvage might be preferred. Agreemente, however, shcmld in general be considered as binding on the respective parties ; and, if the exist- ence of an agreement be once established, the onns rests npon the party impeaching it to show by a preponderance of evidence that the agreement has been abandoned oy consent of both parties, or that the circumstances have so entirely changed aa to make a strict per- formance of the contract a matter of manifest iniostice to the one party or the other. But it is no argument on the one side or the other against the validity of such an agreement, that greater or fewer difficulties than were anticipated, in consequence of the change of weather or other circumstances, attended its performance. 07. The principles which regulate the apportionment of a salvage reward amongst the parties entitled thereto are in most cases com- paratively simple. Tne cases which will faH within the cognizance of the receivers will generally be found to belong to one or other of the following classes. Where the salvage services have been ren- dered,— (a.) By revenue cruisers or coastguard men. b.) By smacksmen, boatmen, or fishermen, c.) By landsmen or beachmen. dS By the master and crew of some veaseL a.) Ab regards the first class of salvors, the revenue cmiBers and coastguard men, rules have been laid down for the distri- bution of rewards of all kinds amonsst the officers and men engaged; and the receivers shoiud therefore pay over the whole amount due to the officers and men to the inspecting officer of the division, who will distribute the same under the authority of the comptroller-oeneral of the coast^ard. A special report should be mole by the in- spectmg officer in cases where special skill or enterprise has been shown, or special risk incurred by any individual, in order that directions may be issued, if necessary, for giving a special reward. (&.) With regard to the second class of salvors, the smadEsmen^ boatmen, and fishermen, it will generally be found that there is a scale of distribution reco^Bpoised and agreed npon amongst them ; the smack or boat has a certain number . 1880. Present : The Queen's moat excellent Majesty in Council Whereas by an order in council made in pursuance of the Merchant Sliipping Act Amendment Act, 1862, and dated tiie 9th day of January, 1863, Her Majesty was pleased to direct : First, that the regulations contained in the schedule to the said Act should be modified by the substitution for such regula- tions of certain regulations appended to the said order : Secondly, that the said regulations appended to the said order should, on and after the first day of June, one thousand eight hundred and sixty-three, apply to French ships, whe£er within British jurisdiction or not : And whereas by several orders in council subsequently made, Her Majesty was pleased to direct that the regulations appended to the said recited order should ap|)ly to ships of the countries specified in the said orders, whether within British jurisdiction or not : And whereas by order in council, dated the thirtieth day of July, one thousand eight hundred and sixty-eight. Her Majestjr was pleased to make certain additions to the regulations appended to the said first-recited order in council : And whereas by order in council, dated the fourteenth day of August, one thousand eight hundred and seventy-nine. Her Majesty, on the joint recommendation of the Admiral^ and the Boaod of Trade, was pleased to direct that, on and aner the first day of September, one thousand eight hundred and eighty, the said r^ula- tions and the additions 'thereto should be annulled, and that tnere should be substituted therefor the new regulations contained in the first schedule thereto, and that the same should, from and after the first day of September, one thousand eight hundred and eighty, apply to diips belonging to the following coimtries ; that is to say, Austria-Hungary, Italv, Belgium, Netherlands, Chui, Norway, Denmark, Portugal, France, Russia, Germany, Spain, Great Britain, Sweden, and Greece, United States, whether within British jurisdiction or not : 426 APPENDIX A.D. 1880. And whereaB by order io cotincil, dated the twenty-fourth day of March, one thousand eight hundred and eighty, Her Majesty, on ihe joint recommendation of the Admiralty and the Board of Trade, was pleased to direct that the operation of the article numbered 10 of the new regulations contained in the first schedule of the aaid order in council of the fourteenth day of August, one thousand eight hundred and seventy-nine, should be suspenaed until the first day of September, one thousand eight hundred and eighty one, and that, in lieu thereof, and in substitution therefor, the article numbered 9 of the regulations appended to the said order in council of the ninth day of January, one thousand ei^ht hundred and sixty-three, shonld continue and remain in force until the said first day of September, one thousand eight hundred and eighty- one : And whereas by order in council, dated the sixth day of September, one thousand eight hundred and eighty. Her Majesty, on Uie joint I'ecommendation of the Admiralty and the Board of Trade, was pleased to direct that, from and after the first day of September, one thousand eight hundred and eighty, the said new r^ulations for preventinff collisions at sea contained in the fiirst schedule of the said recited oraer in council of the fourteenth dav of Auffust, one thou- sand eight hundred and seventy-nine, should, with the exception of the article 10 thereof, apply to ships belonging to the following countries ; that is to say, Cochin, Muscat, Kattvawar, Travancore, and Khelat, Zanzibar, Kutch, « whether within British iurisdiction or not : And whereas it has been made to appear to Her Majesty that the governments of the seveiul foreign countries hereinafter mentioned ; that ia to say, The Qovemment of Brazil, „ „ Ecuador, „ „ Hawaii, „ n Japan, and „ „ ' Turkey, . are respectively willing that, from and after the first day of September, one thousand eight hundred and eightv, the said new regulations for preventing;; collisions at sea, a copy whereof is hereunto appended, contained in the first schediile of the said recited order in cooncil of the fourteenth day of August, one thousand eight hundred and 8eventy-nin& shall, subject to tne provisions of the said recited oxder in council oi the twenty-fourth day of March, one thousand eight hundred and eighty, apply to ships belon^^ to tlieir respecuve countries when beyond the limits or British jurisdiction : And whereas the said Grovemment of Japan is desirous that article numbered 12 of the said regulations should, as applied to Japanese ships, be modified as follows, viz. that it shall not be neceasary for tiie fog horn by the said article required to be provided and used on board steam and sailing ships as a sound signal for fog, &a, to be sounded by a bellows or other mechanical means when the same ia carried on board ships belonging to Japan : REGULATIONS AS TO COLLISIONS AT SEA. 427 And whereas the said Qoyemment of Turkey is desirous that the A,D. 1880. said article numbered 12 of the said regulations shall, as applied to Turkish ships, be modified as follows, viz. that, in lieu of and in substitution for the bell required by the said article to be provided and used as a sound si^inal for fog, &c., there may be placed and kept on board Turkish ships an efficient drum which shall be sounded under the same circumstances and at the same intervals as by the said article a bell is required to be rung : Now, therefore, Her Majesty, by virtue of the powers vested in her by the said recited Act, and by and with the advice of her F^vy Ck>uncil, is pleased to (urect : That, from and after the first day of September, one thousand eiffht hundred and eighty, the said new regulations for preventing cmlisions at sea, a copy whereof is hereunto appended, contained in the first schedule of the said recited order in council of the four- teenth day of August, one thousand eight hundred and seventy- nine, shaU, subject to the provisions of the said recited order in council of the twenty-fourth day of March, one thousand eight hun- dred and eighty, apply to ships belonging to the following countries, that is to say, Brazil, Japan, and Ecuador, Turkey, Hawaii, whether within British jurisdiction or not : Provided, however, that as reraurds ^1) Japanese and (2) Turkish ships, the article numbered 12 of me saia regulations shall be modified as follows viz. : (1) It shall not be necessary for the foff horn by the said article required to be provided and used on board steam and sailing ships as a sound signal for fog, &c, to be sounded by a bellows or other mecnanical means when the same is earned on board ships belonging to Japan ; And (2) It shall not be necessary for the bell required by article numbered 12 of the said relations to be provided and used on board steam and sailing ships as a sound 8i^:nal for fog, &a, to be placed and kept on board Turkish ships, but that, in lieu thereof and in substitution therefor, there may be placed and kept on board such Turkish ships an efficient drum which shall be sounded under the same circumstances and at ^e same intervals as by the said article a bell is required to be rung. C. L. Peel. 428 APPENDIX. 1808. 1880. Rboulatioks fob Preventino Collisions at Sea rkfkbebd to IN THE FOBBGOINO OrDBB. Prdiminary (a). (1.) Art 1. In the foUowing rules every steam ship which is under sail and not under steam is to be considered a saikng ship ; and erexy steam ship which Ib under steam, whether under sail or not, is to tc considered a ship under steam. Tht Jennie S, Barker^ L. IL 4 Ad. 456; 44 L. J. Ad. 20. RttUs concerning Lights. (2.) Art. 2. The lights mentioned in the following articles, numbered 3, 4, 5, 6, 7, 8, 9, 10, and 11, and no others, shsdl be carried in all weathers, from sunset to sunrise : 7%e Anglo Indian^ 33 L. T. N. S. 233 ; 23 W. R. 882. (3.) Art 3. A seagoing steam ship when under wa^ shall carry. — (a.) On or m front of the loremast, at a height above tne hull of not less than 20 feet, and if the breadth of the ship exceeds 20 feet then at a height above the hull not leas than such breadth, a bright wnite light, so constructed as to show an uniform and unbroken light over an arc of the horizon of 20 points of the compass ; so fixed as to throw the light 10 points on each side of the ship, viz, from right i^ead to two points abaft the beam on either side ; and of such a character as to be visible on a dark night, with a dear atmosphere, at a distance of at least five miles. (6.) On the starboard side, a green light so constructed as to show an uniform and unbroken light over an arc of the horizon of 10 points of the compass ; so fixed as to throw die light from ri^ht ahead to 2 points abaft the beam on the star- board side ; and of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least two miles, (c.) On the port side a red li^ht, so constructed as to show an uniform and unbroken light over an arc of the horizon of 10 points of the compass ; so fixed as to throw die light from right ahead to 2 points abaft the beam on the port side ; and of such a character as to be visible on a oark night, with a clear atmosphere, at a distance of at least two mUes. (d,) The said green and red side lights shall be fitted with in- board screens projecting at least three feet forward from the Hght, so as to prevent tnese lights from being seen acroas the bow. (4.) Art 4. A steam ship, when towinc another ship, shall in addition to her side lights, cany two bright wnite lights in a vertical line one (a) The numbers in parentheses hi the margin are the numbers of the Regulations of 1863 wnich correspond with those of 1880. Hie cases referred to have either been decided on the roles of 1868 whidi under different numbers are still in force, or on the new rules. REGULATIONS AS TO COLLISIONS AT SEA. 429 over the otiier, not less than three feet apart, so as to diatingoish her l^^* ^^^ from other steam ships. £ach of these lights shall be of the same construction and character, and shall be carried in the same position, as the white light which other steam ships are required to carry. Art 5. A ship, whether a steam ship or a sailing ship, when employed either in laying or in picking up a telegraph cable, or which from any accident is not under command, shall at night carry, in the same position as the white light which steam ships are reouired to carry, and, if a steam ship, in place of that light, three red lights in globular lanterns, each not less than 10 inches in diameter, in a vertical line one over the other, not less than three feet apart : and shall by day carry in a vertical line one over the other, not less than three feet apart, in front of but not lower than her foremast head, three black balls or shapes, each two feet in diameter. These shapes and lights are to be taken by approaching ships as signals that the ship using them is not under command, and cannot therefore get out of the way. The above ships, when not making any way through the water, shall not carry the side lights, but when nuking way shall carry them. {A neio regtUatum.) Art 6. A sailing ship under way, or being towed, shall carry the (5.) same lights as are provided by Article 3 for a steam ship under way, with the exception of the white light, which she shall never carry : The Esk and The Gitana, L. R. 2 Ad. 360 ; 38 L. J. Ad. 33 ; The Mary Hidum of Appearance. 188 . [Here piUtJuleUer and nunJ>er\. High Court of Justice, ^dmircUty] Division. A»B.Y. 0. Z>., and othezB. Enter an appearance for in this action. Dated this day of X. Y.. Solicitor for the defendant The place of business of X T, is His address for service is or C. D., Defendant in peraon. The address of C, D. is His address for service is The said defendant [requires, or, does not require] a statement of complaint to be filed and delivered. PART 11. APPENDIX (A). (J. A.) Section VI. Indorsements on Writ. AdmircUty, 1. Damage to vessel hy collision. The plaintiffs as owners of the vessel Mary, of the port of , claim £1000 against the hna or vessel Jane for damace occasioned bv a collision, which took place in the North Sea in the month of May last. 2. Damage to cargo by collision. The plaintiffs as owners of the cargo laden on -board the vessel Mary, of the port of , claim £ against the vessel Jane, for damage done to the said cargo in a collision in the North Sea in the month of May last [The two previous forms may be comfrined."] 3. Damage to cargo otherwise. The plaintiff as owner of goods laden on board the vessel Mary, on a voya|^ frtatk Usbon to fkigland, claims from the ovmer of the said vessel £ for damage done to the said goods during such vo jage. 4. In causes of possession. The plaintiff, as sole owner of the vessel Mary, of the port of , claims to have possession decreed to mm of the said veaseL FORMS. 439 6. The plaintiff claims posflesaion of the vessel Mwry^ of the port of , as owner of 48-64th shares of the said vessel against (7. Z)., owner of 16-64th shares of the said vessel. 6. The plaintiff as part owner of the vessel Manj olaims against C D,y part owner and m^ shares in the said vessel £ as part of the earning of the said vessel due to plaintiff. 7. The plaintiff as owner of 46-64th shajes of the vessel Mwry^ of the port of , claims possession of the said brig as against C. IK the master thereof. 8. The plaintiff under a mortgage, dated the day of , claims against the vessel Mary, £ , being the amount of his mortgage thereon, and £ for interest. 10. By a part owner of a vessd. The plaintiff as owner of 24-64th shares of the vessel Mary, being dissatisfied with the management of the said vessel by his co- owners, claims that his co-owners shall give him a bond in £ for the value of the plaintiff's said shares in the said vessel. 11. The plaintiffs as owners of the derelict vessel Mary, of the port of , claim to be put in possession of the said vessel and her cargo. By a bottomry bondholder, (a) 9. The plaintiff as assisnee of a bottomry bond, dated the day of , and granted bv (7. Z>. as master of the vessel Mary, of the port of , to ^. A, at St. Thomas's in the West Indies, claims £ against the vessel Mary and the cargo laden thereon. 12. By Salvors. The plainti^ as the owners, master, and crew of the vessel Caro- linCy of the port of , claim the sum of £ for salvaie services performed by them to the veasel Maty off the Gtood- win Sands, on the day of 13. Claim for Towage, The plaintiffs as owners of the steam-tug Jane, of the port of , claim £ for towage services performed by tne said steam-tug to the vessel Mary on the day of 14. Seamen's Wages. The plaintiffs as seamen on board the vessel Mary claim £ for wages due to them, as follows (1^, the mate £30 for two months' wages from the day of 15. For Necessaries. The plaintiffs claim £ for necessaries supplied to the vessel Mary at the port of Newcastle-on-Tvne, delivered on the day of and the day of (6) The plaintiff's claim is for damages for injury to the plaintiff [or, Neglig«iic«. if by husband and wife, to the plavntiff C, D.] by (a) This form is thus numbered in the Judicature Acts, but it is clearly WTODgly plsoed among the indorsements for possession of a ship, and has in this Ust been placed m proper order. (6) The following indorsements are taken from App. A, Pt. II., s. 4, of the Judicature forms, with such alterations as make them applicable to Admiralty actions. 440 APPENDIX. The plain tiffB as owners of the Falmouth breakwater claim £ against the ship Uhla for damage done to the said break- water by the said ship in the month of June last The plaintiffs claim is for damages against the steamship Sylpk for injury to the plaintitf in the River Mersey, in the month of May last, by the negligent navigation of the said steamship, i^rd The plaintitFs claim is as executor of A. B. deceased, for damages ^mpbellfl £qj. ^y^^ death of the said A, B^ against the vessel Franeonia, and loss of his gooils caused by a collision with the ship StraUusiyde, which took place in the Straits of Dover in the month of Februaiy last (J. A.) Sbction VIII. Indorsements of Charact4r of Parties. The plaintiff's claim is as executor [or administrator] of C. D., deceased, for^ dbc. The plaintiff's claim is against the defendant A. B., as executor [or, cfccj of C D. deceased, for, dke. The plaintiff's claim is against the defendant A, ^., as executor of X. Y., deceased, and against the defendant C, D., in his personal capacity, for, <6c. By husband The claim of the plaintiff C. D. is as executrix of X. F., deceased, MecuSi. *^^ *^® claim of the plaintiff A, B. as her husband, for Against '^^ claim of the plaintiff is against the defeuduit C. Z>., as execu- husband trix of the defendant C. X>., deceased, and against the defendant A. B., !?i.!!Hfc as her husband, for The plaintiff's claim is as trustee under the bankruptcj of A, B^ for The plaintiff's claim is against the defendant as trustee under the bankruptcy of A. B., for Tnuteea. The plaintiff's claim is as [or the plaintiff* s claim is against the defendant as] trustee under the will of A, B, [or under the eettlement upon the marriage of A. B, and X. F., his wife], PubUc The plaintiff's claim is as public officer of the bank, for officer. rji^g plaintiff's claim is against the defendant as public officer of the bank, for The plaintiff's claim is against the defendant A.B. as principal, and against the defendant C. D. as public officer of the bank, as surety, for e«i torn The plaintiff's claim is as well for the Queen as for himself for executrix. Trustee in b«nkmptcy. FORlia HI (A.) Warrant of Arrest in Admiralty Action in Rem. 188 . [Here put the Utter and number.] In the High Ck>urt of Justice, Admiralty Diviaion. Between A. B., Plainti£f^ and The Owners of the Victoria, &c. 'To the Marshal of the Admiralty Division of Our High Court of Justice, and to all and singular his substitutes [or, To the Collector or Collectors of Customs at the Port of ]. We hereby command you to arrest the ship or vessel of the port of (and the cargo and thefreighi, dc* ae the caee may be], and to keep the same under safe arrest until you shidl receive further orders from us. Witness, Hugh MacCalmont, Baron Cairns, Lord High Chancellor of Great Britain, this day of , 18 . Indorsement on Warrant of Arrest. On the day of , 188 , the within- xiamed or vessel, lying arrested by affixing this original wan-ant for a short time on the mast of the said vessel, and, on taking off the process, by leaving a copy thereof fixed in its place. IndorsM by me this day of 188 . APPENDIX (B). (J. A.) Form 5. Notice of Payment into Couti. In the High Court of Justice, 1882. B. No. Admiralty Division. A. B. V. C. D. Take notice that the defendant has paid into Court £ , and says that that sum is enough to satisfy the plaintiff's claim [or the plairUiff^s daimfor, dbc.]. To Mr. X. y., -zr., l%e plaintiff's solicitor. Defendant's solicitor. 44-2 APPENDIX. Form 6. Acceptance of Sum paid into Court. In the Ui^h Court of Justice, 1882. B. No. Admiralty Division. A. B, V. a D. Tuke notice that the plaintiff accepts the mm of £ , paid by you into Court, in satisfaction of the claim in respect of which it is paid in. Form 7. Form of Interrogatories, In the High Court of Justice, 1882. K No. Admiralty Division. Between A. B., Plaintiff, and C. D,, JS. R, and G, H^ Defendants. Interrogatories on behalf of the above-named \yla,inXif^ or d^vt^nt C7. D\ for the examination of the above-named [cf^tffuiaiUt E, F. and Q. if., or plaintif}. 1. Did not, &c. 2. Has not, &c. &c &c. &c. [The drfendani K F. iinguiredio oniicer the interropr tories numbered .] [The defendant G. H. %$ required to anjiosr the interroffa- tories numbered .] Form 8. Form of Answer to Interrogektories. 1882. KNo. In the High Court of Justice, Admiralty Division. Between A, B., Plaintiff, and €, />., E. F, and G. JTl, Defendants. The answer of the above-named defendant E. F, to the interne- tones for his examination by the above-named plaintiff. In answer to the said interrogatories, I, the above-named £. /% make oath and say as follows : — Form 9. Form of Affidavit as to Documents, 1882. B. No. In the High Court of Justice, Admiralty Division. Between A. B,, Plaintiff, and C. D., Defendant. I, the above-named defendant C. />., make oath and say as follows : — 1. I have in my possession or power the documents relating to the FORMS. 443 matten in question in this suit set forth in the first and second parts of the first schedule hereto. 2. I object to produce the said documents set forth in the second part of the said nrat schedule hoeto. 3. That [here aiate upon wluit ffrounds the obfection U Tnade, and verify the facts aefar as may 6e]. 4. I have had, but have not now, in mj possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto. 5. The last-m»itioned documents were last in my possession or power on [staie when], 6. That [here staie what has become of the last-mentioned documents^ and in whose possession they now are], 7. According to the beet of my knowledge, information, and belief, I have not now, and never had in my possession, custody, or power, or in the possession, custody, or power of my solicitors or agents, solicitor or agent, or in the possession, custody, or power of any other persons or person on my benalf, any deed, account, book of account, voucher, receipt, letter, memorandum, paper, or writing, or any copy of or extract from any such document, or any other document whatso- ever, relating to the matters in question in this suit, or any of them^ or wherein any entry has been made relative to sucn matters, or any of them, other than and except the documents set forth in the said first and second schedules hereto. Form 10. Form of Notice to produce Documents, In the High Court of Justice, AdmmJty Division. Title, Take notice that the [plaintiff or defendant] requires you to pro- duce for his inspection tne foUowing documents referred to in your [stcuement of claAm^ or defence^ or affidavit dated the day cf A.D. J. [Describe documents required A Solicitor for Solicitor to the FoBM 11. Form of Notice to inspect DoevmenJts, In the High Court of Justice, Admualty Division. Tide, Take notice that you can inspect the documents mentioned in your notice of the day of a.d. [except the deed numbered in that notice] at my office on Thursday next, the instant, between the hours of 12 and 4 o'clock. Or, that the [plaintiff or defendant] objects to giving you inspec- tion of the documents mentioned in your notice oi the day of A.D. , on the ground that [state the ground]. 444 APPENDIX. Form 12. Form of Notice to admit DoewnetiU. In the High Court of Justice, Admiralty Division. A. B. V. C. D. Take notice that the plaintiff \ot defendant] in this cause proposes to adduce in evidence the several documents hereunder 8pecifiea,and that the same may be inspected by the defendant [or plaintiff], his solicitor or agent, at , on , between the hours of ; and the defendant [or plaintiffj is hereby requiied within forty-eight hours from the last-mentionea hour to admit that such of the said documents as are specified to be originals were re- spectively written, signed, or executed as they purport respectively to have oeen ; that such as are specified as copies are true copies ; and such documents as are stated to have been served, sent, or delivered, were so served, sent, or delivered respectively ; saving all just excep- tions to the acbnissibility of all such documents as evidence in this cause. Dated, &c. To E, F., solicitor [or a^ent] for defendant [or plaintiff]. 0. H.f solicitor [or agent] for plaintiff [or di^endant]. [Here deecribe the documents^ the mawner of doing which may he at follows : — ] Originals. Deocrlption of Documents. Letter — defendant to plaintiff .... Policy of insurance on goods by ship leoMla, on voyage from Oporto to London .... Memorandum of agreement between C. />.» captain of said ship, and E»F, Bill of exchange for £100 at three months, drawn hy A, B, on and accepted by C, D., indorsed by E» P» and Q, H, ...... Mardi 1, 1848. December 8, 1847. January 1, 1848. May 1, 1849. FORMS. GOFIBB. 445 DeBcriptton of Documenta. • Datflo. Original or Duplicate ■erred, sent, or deliTured, when, how, and hy whom. Letter — ^plmintiff to defen- dant .... Notice to produce papers . Record of a jndgmentof the Court of Qaeen*B Bench in an action, /. S. ▼. /. N. Febrnaiy 1, 1848 . March 1, 1848 Trinity Term, 10th Vict Sent by General Poet, February 2, 1848. Served March 2, 1848, on defendant's attor- ney, by E. P, of (a) No. 4. — Proscipefor Warrant, 188 . No. In the High Conrt of Juatice, Admualty DiviBion. Between [sUUe tith of eaiue] A. B., plaintiff, and C. D., defendant. Ship, E. F. I , solicitor for the {stale whether plaintiff or defendant), in this action, pray a warrant to arrest (Hate name and nature of properttf), and there being no caveat against the issne thereof outstanding. Dated the day of 188 . [To be signed b^ the solicitar, or by his derkfor himJ] No. 20. — Praecipe for Notice of Bail [Year] [Letter] No. In the Hi^h Court of Justice, Admiralty Division. [State title of cause,] I, A. B., solicitor for the [staie whether plaintiff or defendant], tender the under-mentioned persons as bail on behalf of [stcUe the name, address, and description of the party for whom bail is to be given\ in the sum of [state the sum in letters] pounds, to answer judgment in this caufie {if for costs add, so far as regards costs). (a) The Forms down to and including No. 58 are those which were made under the Rules of 1869, and which are still in force in some cases with slight alterations. 446 APPENDIX. Names, Addresses, and Descriptions of Sureties. 1 2 Befeiees. Dated the day of 18 . [To be signed by the solicitor, or by his clerk for him.] [The names of bankers should, ifpossikle, be given cu referees.] No. Zh-^NoHce of Bail In the High Court of Justice, [Year] ILetter] No. Admiralty Division. [State title of cause.] Take notice, that A. B., solicitor for the [state whether plainiif or defendant], tenders the under-mentioned persona as bail on b^islf of [state name, address, and description of the party for tohom bail it to be given], in the sum of [staU the sum in letters] pounds, to answer judgment in this action (ijfor costs add, so far as regards costs). Names, Addresses, and Descriptions of Sureties. 1 2. Referees. Dated the day of 18 . G. H., ManhaL No. 22. — MarshaTs Report as to the Sufficiency of Proposed BaSL In the High Court of Justice, [Tear] [Letter] No. Admiralty Division. [SiaJte title of cause.] I hereby report that I have made diligent inquiry and certified myself that [ntcUe names, addresses, and descriptions of the two sttreHes] the proposed bail on behalf of [state name, address, and description of the party for whom bail is to be g%ven] to answer judgment in this cause {if for costs add, so far as reganis costs) are respectively sufficient sure- ties for the sum of [state the sum in letters] pounds. Dated the day of 18 . G. H., Marshal. No. 23. — PrcBdpefor Bail Bond, In the High Court of Justice, [Year] [Letter] Ko. Admiralty Division. [State title of coMseJ] I, A. B. . solicitor for the [state u^ther plaintiff or drfendant'], pray a bail bond lor the signature of the sureties named in the annexed notice of bail and report of the marshal, left herewith. Dated the day of . . 18 . [To be sigfied by the solicitor, or by his derkfor him.] FORMS. No. 24. —Bail Bond. [Year] [Letier] No. In the High Coort of Justice, Admiralty Division. [State title of cause.] Whereas an action is now pending in the Admiralty Division of the High Court of Justice, Between A. B., plaintiff, and C. D., defendant Now therefore we and hareby jointly and severally submit ourselves to the jurisdiction of the said Court, and consent that, if he the said shall not pay what may be ad- judged a^inst him in the said cause with costs, execution may issue forui agamst us, our heirs, executors, and administrators, goods and chattels, for a sum not exceeding pounds. 447 This bail bond was signed by the said and , the sure- ties, the day of 18 . Before me } [Signatwree of Sureties.] [To he signed brfore the registrar, or one of the derks in the registry, or before a commissumer.] No. 2b,-^PrcBcipefor Commission to Uike Bail. [Year] [Letter] No. In the High Court of Justice, Admiralty Division. [State title of cause], I, A.B., solicitor for the [state whether plaintiff or defendant], pray a commission to take bail on behalf of [state name, address, and description of (he person for whom hail is to be aiven], in the sum of [state the sum in letters] pounds, to answer judgment in this cause yiffor costs add, so feir as regards costs) ; the said commission to be addressed to Dated the . day of 18 . [To be signed hy the solicitor, or by his derkfor him,] No. 26.— CommtMum /or BaU. 188 . No. In the High Court of Justice, Admiralty Division. Victoria, by the crace of God of the United Kingdom of Great Britain and Irelana Queen, Defender of the Faith. To all and fidnffular commissioners to administer oaths in the Supreme Court of JucUcature, greeting. Whereas in an action pending in the Admiralty Division of our High Court of Justice between plaintiff, and defendant, bail is required to be taken on behalf of , in the sum of pounds, 448 APPENDIX. to answer jadCTient in the said action We therefore hereby authorize yon to take sach bail on behalf of the said from two sufficient sureties, who may be produced before you for that puipose, upon the bail bond hereto annexed, and to swear the said sureties to the truth of the annexed affidavits as to their sufficiency. And we command you, upon the said bail bond and affidarits being duly executed and signed by the said sureties, to transmit the same, attested by ^ou, into the principal registry of the Admiralty Division of our said Court Qiven at London, under the seal of our said Court, the day of 188 . Taken out by The Farm of Oath to he (tdministend to each of (he Sureties, You swear that the contents of the affidavit to which you have subscribed your name are true. So help yon God. No. 27. — Standiiig Chmmiesion to take Bail. [Year] [Letter] No. In the High Court of Justice, Admiralty Division. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To , greeting. Whereas the Judge of the Admiralty Division of our High Court of Justice has decreed a commission to be issued unto you authorizing you to take bail in any action in our said Court : We therefore hereby authorize you, until this commission be revoked, to take bail in any cause or causes in out said Court from any sufficient sureties who may at any time be produced before you for that purpose, and to swear them to the truth of the affidavits as to their sufficiency in that behalf. And we command you, upon the bail bond and affidavits as to the sufficiency of the sureties m any cause being duly executed and signed by the sureties, to transmit the same attested by you into the registry of our said Court Given at London, under the seal of our said Court, the day of in the year of our Lord 18 . £. F., Registrar. Standing commission to take bail. Issued to No. 28. — Affidavit of Justification. [Year] [Letter] No. In the High Court of Justice, Admiralty Division. [Staie title of catue], 1\ state name, address, and description], one of the proposed suTetie^ for [state ^lame, address, and description of the person for whom haii u FORMa 449 to he given], make oath and say, that I am worth more than the sum of [state the sum in letters in which bail is to be gi/ven"} poondfl after the payment of all my debts. On the day of 18 the^ said was duly sworn to the > S/ignontwre of surety, truth of this affidaYit, at ) Before me, Commissioner. No. 29. — PrtecipefoT Release. [Year] [Letter] No. In the High Conrt of Justiee, Admiralty Division. [State tide of cattse.] I, A. B., solicitor for the [state whether plaintiff or drfendanQ in this action pray a release of [state name and nature of property] from the arrest effected by virtue of a warrant issued from the Registry of the said Division in this action, and there being no caveat against the release thereof outstanding. Dated the day of 18 . [To be signed by the solicitor^ or by his derkfor him,] No. 30l — Release, [188 ] [Letter] Na In the High Court of Admiralty of England. Victoria, by the Grace of Gkxl of the United E^ingdom of Great Britain and Ireland Queen, Defender of the Faith : To the Marshal of the Hi^h Court of our Admir^i^ of England, and to all and singular hia substitutes, greeting. Whereas in a cause of instituted in our said Court on behalf of against , we did command you to arrest the said and to keep the same under safe arrest until you should receive further orders &om US. Now we do hereby command you to release the said from the arrest effected by virtue of our warrant in the said cause, upon payment being made to you of all costs, charges, and expenses attending the care and custody of the property wnilst under arrest in that cause. Given at London, under the seal of our said Court, the day of in the year of our Lord one thousand eight hundred and E F., I^gistrar. Release Taken out by G G 450 APPENDIX. No. 31. — Precipe for Caveat Release. [Tear] [Letter] No. In the High Court oi Jastice, Admiralty Division. [State title of catue.] I, A. B., solicitor for the plaintiff in an action pending in the Admiralty Diyision of the High Court of Justice between [ttaie partiesjf pray a caveat against the release of the [$tate name and nature of pro])ertj/]. Dated the day of 18 . [To be signed by the solieHor^ or by his derkfor him,] No. 32. — PrcBcipefor Caveat IFarrawt^ by Defendant, In the High Court of Juatice, Admiralty Division. [State title of cause,] I [staie name^ address^ and description], hereby undertake to enter an appearance in any action that may be commenced in the Principal Registry of the Admiralty Division of the High Court of Justice, in which the plaintiff is entitled to arrest [state name and natttre of the property], and within three days after I shall have been served with a writ of summons in any such action to give bail therein in a sum not exceeding [«toto amount for which the undertaking is aiven]^oiQJiA^ or to pay such sum into the aforesaid registry. And 1 consent thst all instruments and other documents in such action may be left for me at [state address]. Dated the . day of 188 . [To be signed by the party, or by his solicitor,] * Praeipefor Caveat Warrant by Plaintiff, in Case of a Counterdaim* [Year] [Letter] No. In the High Court of Justice, Admualty Division. Between plaintiffs, and defendants. I [state name, address, and description], hereby undertake within three days after I shall have been served with a notice of any counter- claim herein in respect of which the defendant is entitled to arrest [state name and nature of property] to give bail to answer such counterclaim in a sum not exceeding [state amount for which th« undertaking is given] pounds, or to pay such sum into the Principal Registry of the Admiralty Division of the High Court of Justice. Dated the day of 188 . [To be signed by the party, or by his solicitor,] * Thifl Form issues from the registiy. FORMS. 451 No. 33.— Fe«i.» [Tear] [Letter] No. In the High Court of Justice, Admiralty Division. The [state title of caiMe], master. A. B., solicitor for the plaintiff in an action pending in the Admi- ralty Division of the High Coort of Justice between [state the parties'] says as follows [here mc£e the necessary statements^ in short paragrc^phs, wwmbered consecutivtly^ And the said A. B. pravs [here state the jdasntiff's prayer]. Dated the day of 18 . No. 34. — Answer. [Year] [Letter] No. In the Hi^h Court of Justice, Admiralty Division. [State title of cause,] C. D., solicitor for [state name, address, and descriptum], the de^ fendant in this action, says as follows : [here make the necessary state- ments, in short paraarapns, numbered consecutiffely]. And the said C. D. prays [here state the prayer of the defendant"^ Datedthe day of 18 , No. 35. — Beply^ or any subsequent Pleadwig, [Year] [Letter] Na In the High Court of Justice^ Admiralty Division. [State title ofcomse.] A. R. solicitor for the [state whether plaintiff or defendant^ further flays as toUows : [h&^ make the necessary statements, in short paragraj^ numbered consecutively}. Dated the day of , 18 . No. 36. — Conclusion, [Tear] [Letter] No. In the Hi^h Court of Justice, Adnuralty Division. [State title of cause.] A. B., solicitor for the [state whether plaintiff or defendant], says that he does not plead further, and prays that the pleadings be con- cluded. Dated the day of , 18 . * This and the three following Forma are still required for petitions on protest, and in objection to the registrar's report oa 2 452 APPENDIX. No. 37. — Return as to IFitnesta examined m London^ In the High Court of Justice, [^ 18 , at , in the presence of the solicitors in the said cause, or in the presence of their or either of their lawfully appointed substitutes, or otherwise, notwithstanding the abeence of either of them^ to swear the witnesses who shall be produced before you for examination in the said cause, and cause them to be examined, and their depositions to be reduced into writing. We further authorise you to adjourn (if necessary) the said examinations from time to time and from place to place, as ^ou may find expedient And we command you, upon the examinations being completed, to transmit the depositions and the whole proceedings had and done before you, together with tlus com- mission, to the regbtry of our said Court. Given at London, under the seal of our said Court, the day of , in the year of our Lord 18 . R F., Registrar. Commission to examine witnesses. Taken out by Na 40. — Return to Commisnon U> 9xtmiine WitnisMjL In the High Court of Justice, [Fear] [Leiterl No. Admiralty Division. \StaU tiUe of eaiue^ I, A. B., the examiner for commissioner] named in the commission hereto annexed, bearing date the day oi » 18 » hereby certify as ibllows : (1.) On the day of , 18 ^ I opened the said commis- sion at , and in the presence of the solicitors for the plaintiff and defendant [or in the absence of eine or other of them^ ae the oaee may he\ administered an oath to and caused to be examined the following witnesses, who were produced before me on behalf of the [state whether plaitUiff or dsmuUmt] to give evidence in thia cause^ viz. : John ThomoBk JViUiamHoe. dtCm cce» (2.) On the day of , 18 , 1 proceeded with the examinations at the same place (or at some other place, m the com nyay be), and in the presence of the said solicitors administered an oath to and caused to oe examined the following witnesses, who were pro- duced before me on behalf of the [etate tefuther pkUntif or defenaan£\ to give evidence in this cause, viz. William ThovnaSf <^c. dtc. Dated the day of ,18 . O. IL, Examiner or CommissiMier. No. 41.— Writ of Subpoma (a). Victoria, by the Qrace of Ood of the United ICingdom of Oieat Britain and IreLemd Queen, Defender of the Faith, to W. W. [names of (a) Form G 1, of April, 1880, wOl be also aooepted al the Begistiy. 454 APPENDIX. ail witnesses indMded in the tubpctnii^ greeting. We eommand yoa that laying aside all and singolar bosineea and excuses you and every of yon be and appear in your proper persons in tne Admiral^ Division of the High Conrt of Justice, belore Sir Bobert Phillimore, at Westminster, on the day of , by of the clock in the forenoon of the same day, to testify all and singnlar those things which yon or either of you Imow in a certain cause now depending in our High Court of Justice, between , and on that day to be tried ; and this you or any of you shall by no means omit, under the penalty upon each of you of £100. Witness, No. 42.^/Sttmf?um« (a). [Ywrl [LeUer\ No. In the High Court of Justice, Admiralty Division. [State Uik of danue,] Let the solicitor, attend me at my cfaamben, at Westminster, on next, at of the clock, to shov cause why [state the subject matter of the summons}. Dated the day of 18 . No. 48. — Prteeipe for Commission of Appraisement and Sale, [Year] [Letter] ' No. In the High Court of Justice, Admiralty Division. [State titU of cause,] I, A. B., solicitor for the [state whether plfiinHff or defendant], pray a commission for the appraisement and sale of the [state name wii nature of property], which was decreed by the Court on the day of 18 . Dated the day of 18 . [To be signed by the eolicitor, or by his clerk for him.] No. 49. — Commission of Appraisement and Sale, In the High Court of Justice, [Year] [Letter] Na Admiralty Division. Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of Uie Faith : To the marebal of the Admiralty Division of our High Court of Justice, officer of our Supreme Court, and to all and singulis his substitutes, greeting. Whereas in an action pending in our said High Court between [sttdt ^intiffs and defendants], the judge of our said High Court of Justice nas decreed the vessel [state name of ship] to be appraised and sold : We therefore hereby authorise and conmiand you to reduce into writing (a) Form H 1, of April, 1880, will also be accepted at the Registiy. FORMS. 455 an inventory of the said , and, having chosen one or more expe- rienced person or persons, to swear him or them to appraise the same according to the true value thereof, and upon a certificate of such value havins been reduced into writing to. cause the said to be sold by public auction for the highest price, not under the appraised value thereof, that can be obtained for the same. And we fut-tner cunuuaud you, immediately upon the sale being completed, to y&j the proceeds arisini^ therefrom into the principal registry of the said Aumiralty Division, and to file the certificate of appraisement signed by you and the appraiser or appraisers, and an account of the sale signed by you together with ibis commission. Qiven at London, under the seal of our said Court, the day of in the year of our Lord 18 . Commission of appraisement and sale. Taken out by . E. F., Registrar* No. 50. — Praxipefor Order for Payment of Money out of Court In the High Court of Justice, [Tear] [Letter] No. Admiralty Division. [State title of caiue.'] I, A. B., solicitor for the [state whether plaintiff or defendant\ pray an order for the payment out of Court to [elate to whcm] of the sum of [state the swm in letter8]y being the [state the nature of the claim] decreed to be paid to Dated the day of 18 . [To he siffned by the soUdtor, or by his clerk for him.] No. 61. — Order for Payment of Monetf out of Court. lu the High Court of Justice, [ Year] [Letter] No. Admiralty Division. SStcUe title of cause.] r. K., judge of the Admiralty Division of the High Court of Jus- tice, hereby oraer payment of the sum of , being the amount of , to be made to , out of the now remaining in the registry of the said Court Dated the day of 18 . J. K., Judge. Witness, £. F., Registrar. No. 54. — Proeeipe for Mowitinn to bring in Certificate of Ship's Register. In the High Court of Justice, [Year] [Letter] No. Admiralty Division. [State title of cause.] I, A. B., solicitor for the [state whether plaintiff or defendant], pray a monition against [state name, address, and desmption] to bring into the registry of the Court the certificate of registiy belonging to the above-named or vessel Dated the day of 18 . [To be signed by the solicitor, or by his derkfor him.] 456 APPENDIX. No. 55. — Moniiion to bring in CertifieaU of Skif^i BegitUr. [Year] [Letter] No. In the Hi^b Court of Justice, Admiralty Division. [State title ofcatue,] Yictoria, b^ the Qraoe of God of the United Kingdom of Great Britain and Lreland Queen, Defender of the Faith : To , greeting. Whereas in a cause of instituted in the Admiralty Ddvision of our High Court of Justice on behalf of against the or vessel [whereof now is or lately was master], her tackle, apparel and furniture, the judge of our said Court has decreed a monition to be issued against you to bring in the certificate of registry belonging to the said or vessel, which is in your poaseasion or under your control : We therefore hereby commana you the said to bring, within six days from the service hereof (exclusive of the day of such service^ the said certificate into the registry of our said Court, to abide the judgment of our said Court concerning the same. Given at London, under the seal of our said Court, the day of in the year of our Lord 18 . E. F., Begistrar. Monition to bring in ship's register. Taken out by No. 56. — PrcBoipe to withdraw Caveat. [Year] [LOter] Na In the Hi^h Court of Justice, Admiralty Division. [State title ofoauee,] I, A B., solicitor for the [state whether plaintiff or defendafU\ pray that the caveat against [state tenor of caveat], entered by me on Uie day of 18 , on behidf of [state name] may be with- drawn. Dated the day of 18 . [To be signed by the person by whom the praecipe for the entry of the caveat was signed,] No. 57. — Prcsdpefor Service bv the Marshal of any Insitrument in Rem other than a Warrant. In the Hi^h Court of Justice^ Admiralty Division. [StaU title of cause] I, A. B., solicitor for the [state whether plaint^ or defendanti, piay that the [state nature of instrument] left herewith be dtuy executed. Dated the day of 18 [To besigned by the solicitor, or hy hisderkfor hisn.] FORMS, *57 No. bd.-^Pracipe for Service by the Marehal of any InttntnuftU vn FerwMxm, In the Hi^h Court of Justice, Admiralty DivisioiL The \eUae i^JGU of cause]^ master. I, A. B., solicitor for the [state whether plaintiff or defendafU\ t>ray that the [state fMture of instrument] left herewith be duly Berved on [itate namey address^ and description of person on vhom the same is to Deserved], Dated the day of 18 . [To he siyned by the solicitor, or by his clerk for him. No. b9,^JFrU of Attachment. (J. A.) In the High Court of Justice, 187 . B. No. Admiralty Division. Between jIJB Plaintiff, and CJ), and others . . Defendants. Yictoria, &c. (The Name of Ship,) To the sheriff of greeting. We command you to attach GJ), so as to have him before us in the DiYidon of our High Court of Justice wheresoever the said Court shall then be. there to answer to us as well touchiuff a contempt which he it is alleged hath committed against us, as uso such otner matters as shall be then and there laid to his chaige, and further to perform and abide such order as our said Court shall make in this behalf, and hereof fail not, and bring this writ with you. Witness, itc. (a) Notice of Motion (6). In the Hi^h Court of Justice, 187 . No. Admiralty Division. [State title of caiuse], I, A.B., solicitor for the [staie whether plaintiff or defendant] in this cause, give notice that I shall by counsel on the [insert date^ day of , 187 , move the Judge in Court to [stcUe the object of the fnotion.] Dated the day of , 188 . [To be siyned by the solicitor, or by his clerk for him,] (a) The Forms without numbers which follow are issaed from that Be> gistrjt and are therefore inserted here. (6) Form B 17, of April, 1880, will also be accented at the Registiy. 458 APPENDIX. PrtEcipefcr Ou attmdaiho. of Trinity Maden or Nautical Astators* In the Hi;:h Court of Justice, 187 . Na Adiiiiraltj DiirL^iozi, Ship The fi^ilicitors for the [p/aintiffk or defendants] pray that the attendance of [Trinity Masters or Nautical Assuaani] may he re- qoe^te'l at the hearing of this [action or appeal]. Dateci the day of I8d . [To be signed by the solidiarj or by his derk for him.'] Form and Pbecedeht op Pbelimiitabt Act iv Actiov for Damage bt Collisioh. IQSi.—lLetter, and Number,] [Title.] Preliminaiy Acta. The names of the ve8HeU which came into collision, and the names of their masters. Time of collision. Place of collision. Direction of wind. State of the weather. State and force of the tide. On behalf of the OwNBBfl OF THE S. G. O. Thompson, L The S. G. G, Thomp- son. A. B. Master. The PacUdus. C. D., Master. II. Ahout 11.40 a.m. on December 29, 1876. III. The river Mersey, a short distance be- low the landing- stage. IV. No wind, or scarcely any, — south south- east. V. Thick foff, having died denly away. wind sud- VL Ebb, force about five knots per hour. On BEHALF OF THE Owners of the Pactolus. I. The ship Paetdus, C. D., Master. The S. G. G. Thomp- son. A. B., Master. II. About 11 a.m. on December 29, 187a III. Mid-river, off the Waterloo Dock, in the River Mersev. IV. About S.E. Hazy. VI. Ebb, making ahout 4 knots an hour. FORMS (preliminary ACT). 459 The course and speed of the Teasel, when the other was first seen. The lights, if any, carried by her. Distance and bear- ing of the other vessel, when &»t seen. The lights, if any, of the other vessel, which were first seen. Whether any lights of the other vessel, other than those first seen, came into view before the collision. What measures ^srere taken,and when, to avoid the collision. The parts of each vessel which first came in contact VII. Drifting with the tide. Head inclined to Cheshire shore. VIII. IX. Abont three points on starboard bow. About a cable's length ofL XI. XII. Helm kept a star- board and Pactolus hailed loudly seve- ral times to star- board her helm and sheer to Liverpool side. XIIL Starboard fore rigging of 8, 0. G. TfioTtyp- »on^ chain and stem of Pactolus, The 18th day of January, 1877. D. H, ., E, F., and G. H., able seamen, who on the day of , 188 , were serving on bocurd the ship A. B, 2. I am informed and beHeve that on the said day of , the ship A. B, rendered salvage services to the steamship C, D.. and the plamtiffs were engaged in their capacities aforesaid on boara the said ship A, B, during &e rendering of such services. 3. A sum of £ has been paid by the owners of the (7. 2). to the owners of the A, B. for the salvage services rendered by the A. B.to the C D., and has been accepted by them in respect of such services. 4. The above-named defendants, L, M. and N, 0., shipowners of , are the registered owners of the said ship A, B., and have duly received such sum as aforesaid, of which they have now posaesdion. 5. The above named defendants, L. M. anaN, 0., have not paid any part of such sum to the plaintiffs in respect of ^e services rendered by them on board the A. B. on the day of aforesaid, and refuse to pay to the plaintiffs an equitable proportion of such sum. 6. The aid and process of this honourable Court are required to enforce payment to the plaintiffs of an equitable proportion of the above-named sum of £ 3. In Action of Towage. (Title.) I, A. B., solicitor for the above-named plaintiffs, make oath and say as follows : — 1. The plaintiffs are the owners of the tug E.j and reside at L. 2. I am informed and believe that on the day of >, 188 , the master of the said tug E, agreed to tow the ship L., now sought to be arrested from F. to G. for the sum of £ 3. The tug E. towed the said ship from F. to 0., but the owners of the said ship L. have refused to pay the said sum of£ , and the said sum still remains unpaid. 4. The aid and process of this honourable Court are required to obtain payment of the said sum of £ 4. In Action of Damage. (TiOe.) If J. C, of Liverpool, in the County of Lancaster, clerk to 'bieasn, B, db Co., solicitors for the plaintiffs in this action [or I, A. B.^ the above named plaintiff], make oath and say :— 1. This action is brought by A, B. [or one A. B,], shipowner of Liver- pool, in the County of Lancaster. 2. I am informed and verily believe that on the 20th day of Februaiy last, a collision, the subject of this action, occurred in the Salisbury Dock, Liverpool, between the above-named brig or vessel 462 APPENDIX. KaUy of which the arrest Ib now desired , and the S. S. Athlete^ whereby the latter vessel sustained considerable damage [or was sunkl 3. The owners of the said brig or vessel Kate, as I am further in- formed and believe, reside out of the jurisdiction of this honourable Court, and the said claim remains unpaid [or, I have made application for compensation in respect of the said damage to [or, loss of] the said steamship to the owners of the said brig, but they have refused and decline to pa^ such compensation]. 4. The said brig or vessel Am the defendants in respect of such injury as aforesaid, but the said claim has not been paid by the defendants. 6. The aid and process of this honourable Court are required to enforce payment of the said claim. 6. In as AoTioir for Waobs and DissuRasMSMTS. (Title.) I, A. B.y the above-named plaintiff [or^ solicitor to the above-named plaintiff j make oath and say : — 1. This action is brought by me [or by A, B.\ a master marinezv to obtain the payment of wages due to me [or to him] as master of the above-named vessel C. Z>., and on account of disbursements made by me [w, by himl as such master as aforesaid, from the 20th of August to the 9t& of November. The said claim amounts to the sum of jt . 2. The paid vessel C. D, is a Spanish ship, and notice of this action has been given by me [or by my solicitor, or by me, the solicitor for FORMS (affidavits). +68 the above-named plaintiff T.] to Mr. K F., Consul-General of Spain [this paragraph is only necessary when the ship which is sought to be arrested is a foreign vessel]. 3. The owners of the said vessel have not satisfied my said daim [or, the claim of the plaintiff] herein. 4. The aid and process of this honourable Court are required to enforce payment of my [or, of the plaintiff's] claim for such wages and disbursements as aforesaid. 7. In Action of Mortoaob. I, A.B,, banker, of L., the plaintiff in the above-named action, make oath and say as follows : — 1. On the day of > 18 » one M., the sole owner of the ship X., now sought to be arrested, by deed mortgaged the said ship to me as security for a sum of £ 2. The said sum of £ has not been repaid to me by the said M, 3. In consequence of the default of the said M, in repayment of the said sum of .£ , I am entitled to receive possession of the said ship under the provisions of the said deed. 4. The aid and process of this honourable Court are required to obtain possession of the said ship. 8. In Action of Bottomry. (TitU,) 1, A.B,, merchant, the above-DAmed plaintiff, make oath and say as follows : — 1. I am the assignee [or, the holder, or the payee] of a bottomry bond for £ on the ship 0., the arrest of which is now sought, dated the day of » 18 , payable to Messrs. H. 1. The value of the late steamship A, B, 18,000 0 0 Contracts. 2. Loss on contracts for the use of the A, B, ... 730 0 0 Cargo. 3. Value of two cases of goods 30 0 0 Crew's effects : — 4. George Dixon, master ... 43 9 ^ 5. Thomas Smith, mate 8 10 0 6. Frederick Jones, seaman ... 5 10 0 FORMS (affidavits). 466 IS. Affidavit op Value of Ship Totally Ixmkf. I, A. B,f of L. [stcUe trade or employment], make oath and Bay at follows : — 1. I was well acqnainted with the late screw steamship X F., of L. I inspected her on her completion in 9 18 , and afterwards at the commencement of the voyage she was performing when she was run down, on the dav of , 18 . 2. The said steamship Jt, Y. was built and completed at L. aforesaid, in the month of , 18 . She was tons gross register, worked bv ensines of horse power, and at the time she was lost she was classea at Lloyd's. 3. The market value of the said steamship at the time of her loss was £ at least Sworn by the said A. B, at , this day of ) j « .before me, R. B. ]^'^* A Commissioner, &c 13. Affidavit of Loss of Pbopbbtt ok Boabd a Ship Totally Lost. I, A, B.y of W., in the county of D. \$taU employnwfU], make oath and say as follows : — 1. That I was [etaU employment] on board the X, Y, at the time when she was simk by the T, 2 The schedule hereunto annexed and marked by me contains a correct list of \etate the nature of the lod articles^ and other articles belonging to me, and on board the said steamship X. Y. at the time she was so sunk as aforesaid. 3.. The whole of the said wearing apparel mentioned in the said schedule were entirely lost in the said steamship X. Y. 4. The several amounts set forth in the said schedule were the true value of the articles (opposite to which they are placed) at the time they were lost as aforesaid, to the best of my knowledge, information, and belief. Sworn by the said A. B. at , this day of } ^ n , before me, B, B., \ ^'°* A Commissioner, &c. Exhibit annexed, list of clothes lost on board the X Y, belonging to A £. £ e. dL 1 Pilot cloth jacket 1 10 0 3 Flannel shurto . . . . . . .17 0 2 17 0 This is the schedule referred to in the affidavit of il. B, sworn before me this day of *\ A B R. B.y I * * A Commissioner, &c. H H 466 APPENDIX. 14. Affidavit as to amount of Freight dub to Shifownsb. (Title.) I, A, B,y of y brokeTi make oath, and say as follows : — 1. I am the agent for the owner of the above>named vesseL 2. The said vessel was abandoned at sea in the month of , when on a voyage from to , and was afterwards brought to , where she was taken possession of by my agent on behalf of her owner, and it was arranged with the aUeged salvors that she should be brought to , which was done. 3. The exhibit hereunto annexed, marked No. 1, is a statement of the freight due upon the cargo laden on board llie said vessel on her arrival at the port of . The sum of £ therein mentioned is the gross value of the said freight. The neces- sary expenses of realizing the said freight in , amount to £ , as shown by the said exhibit No. 1, and the expenses incurred at [port of loadingl^ amount to £ , makmg^ to be deducted from the said ^ross value, the sum of £ » and the net value of the said freight is £ , and no more. 4. The exhibit hereunto annexed, marked No. 2, is an account of the expenses incurred b^ the master at [place to which ship vm brouffht by atUvors], and m bringing the said vessel thence to [port of ducharge]. Sworn at , on the day of 9 18 } before me, C, Z>. A, B. Exhibit annexed. This is the exhibit referred to in the above affidavit Sworn at , on the day of , 18 . before me, C B. A. B. 15. Affidavit as to Value of Cargo. (TOU.) ly A. B.,of , make oath, and say as follows : — 1. 1 am the consignee of the cargo now or lately laden on board the above-named ship. 2. At the time when the said vessel was arrested in this action she had on board [coargo]. 3. In my opinion the outside value of the said caigo at the time of the said arrest, was £ , and no more, and if the same were compulsorily sold at the present time I believe that it would not realize more than the said sum of £ Sworn at , on the day of , 18 . before me, X F. A. B, FORMS. 467 16. NoncE TO Consul of Ikstitution of Acnoir agaivbt ▲ Forexgn Yesssl. The day , a.d. 18 . The [state naUonalUy] ship or vessel Ida. , Master. Sir, — ^I hereby give you notice that I have this day instituted an action in the High Court of Justice, Admiralty Division, against the above-named ship or vessel, now lying in the port of , to enforce payment of wages due to A, B,^ ordinary seaman on board he said ship or vessel, on her voyage from to I am, sir. Your obedient servant, a JD., To the Hon. Solicitor to the above-named A, B. Consul General of [state gavemment]. 17. Precedents of Tenders. A. In the High Court of Justice, 1877. B. No. . Admiralty Division. The [name of ship in action in rem}. Between A. B,, plaintiff, and C. D. and E. F^ defendants. Take notice that the defendants have paid into Court £ , and say that the said sum is enough to satisfy the plaintiff's claim for the wages and disbursements proceeded for, and the costs of the above action. Dated the day of , 1877. (Signed) B, S Co^ Defendants' solicitors. To Mr. X r., The plaintiff's solicitor. B. (Titk as aboioe,) Take notice that I [or we] have this day paid to the account of the registrar at the Bank of England [or into Court] the sum of ^82, which we tender to A. BAn full satisfaction for the services pro- ceeded for, and for the costs of the above action. (Signed) B, «fc Co., Defendants' solicitors. To A. R, The above-named plaintiff. C. {Title as above.) Take notice that I [or we] have this day paid into Court [or to the ^h2 468 APPENDIX. account of the registrar at the Bank of England] the sum of £300 which I [or we] tender in full satisfaction for the services proceeded for, exclusive ol costs. And the defendant [or defendants] contends that the plaintifis [or plaintiff] ought to be condemned in costs> or ought not to be allowed their costs, on the ground [here state recuoTu shortly] that the action ought to have been instituted in the proper County Court [or that the services in question were towage services rendered under an agreement between the plaintiff and defendants, and therefore this action has been improperly brought]. Dated the day of , 188 . (Signed) Defendants' solicitor. To Mr. X r., Plaintiff'fi solicitor. The above precedents can be varied to suit the nature of the action and the circumstances of each case. 18. NOTIOB RBJBGTIKO A TbXDBR. (TiOe.) I hereby give you notice that the plaintiffis reject Uie tender of £ , made by you in this action. Dated the day of , 18 • To a D., A, B,, Solicitor for the defendants. Solicitor for the plaintiffs. 19. Notice of thb Pboddction of TVitnessbs fob Examination bbforb an examiner. (TUU.) Take notice that on the day of , 18 , at a.m., 1 shall produce before [examiner], at [place], A. B, and C. D. witnesses for examination in this action. To G. H, E. R, Solicitor for the defendant ' Solicitor for the plaintiff. 20(a). Notice that a Plaintiff procbbds no Further in an AcnoN. (Title.) I, the undersigned, hereby sive notice to the defendant or his solicitor that I proceed no furtner in this action [if the ship rrpgan, Rosevean, Rosevere and Crebawithen, at none of which reefs could they discover anything. 12. Shortly before seven a.m. the master and crew of the Beqnd^ which was then reachins in towards Minalto, heard etiea but could see no one owiug to the fog. They went in the direction from whence the cries had been heard, which was between the rocks of Mincmrlo and Minalto, the channel between which is filled with sunken rocks and ledges, and saw what they believed to be a man floatinf; in the water. They tacked the Rapid to clear some sunken rocks near which the man was, and some of the plaintiffs went in their small punt through the broken water on the sunken rocks towards him. Whilst doing this they saw another man and went towards him first They found him with his arm entangled in a beckit, a piece of wood used in shipping, between the combings of the hatcnway for the hatches to rest upon. They with difficulty got him clear of this» and then though he was a very large and heavy man and quite insenaible, succeeded in getting him into their small punt Whilst this was being done the heavy current and the wind had carried the punt among the sunken rocks and those on board her were in considerable danger. They put her head to the wind and signalled to the Rapid to come towards them, which she did notwithstanding the suncen rocks. Tliey got the two boats as nearly as poasil^e alongside, and put the rescued man (whose name was Behaerer) on board the Rapid, The punt was then rowed after the first man and found him in a broken boat filled with water the bottom of which was smashed out and entirely gone. They picked him up and put him on board the Rapid. 18. The Rapid then made several tacks in order to see if thei« were more men in the water. But, as none were seen, and Rehdei^r, notwithstanding all the exertions of those on board, gave no sign of recovering, and the other man also required care, they rowed to Saint Mary's for medical assistance. Whilst so proceedmg they passed quantities of boxes, clothes, and trunks whicn they did not stop to pick up, being anxious to obtain assistance for the two men. Havin<; reachea Saint Mary's they procured medical assistance and carried Behderer to an hotel. He and the other man recovered. 14. Those on board the 0. and M, in a break of the fog saw two masts of the SchiUer on the Retarrier Reef, about three-quarters of a mile south-east by east of the Bishop Rock Lighthouse, and about three-quarters of a mile from where tne 0, and Af. then was. They PRECEDENTS OF PLEADINGS* 475 went towards her as fiast as they oonld^ shipping large quantities of 8alTag«. water as they did so. On getting near they saw that one mast had gone by the board since they had first seen her and they heaid ^oats. They rowed through a large qnantit|f of wreckage and got to a man in tne water nearly lifeless, whom with difficulty they got on board. By the violence of the sea a piece of the wreckage was knocked up against the 0. and Af., unshipping her rudder, which hindered them for some time. When this was put right they rowed up to six oUier men whom they saw struggling in the water, and succeeded after much difficulty in rescuing four out of the six. The SchiUer at this time was about a quarter of a mile distant, one mast still standing and the rigging crowded with people whose cries could be distinctly heard. 16. The 0. and M. now had in her five hands beside her crew, and was completely unsafe and getting unman£tf;eable owing to the (j^uantity of water m her. The people they had rescued were in a lifeless condition, and the first one got on board apparently dying. Those on board the 0. and M. were therefore bouna for the preser- vation of the lives they had rescued and for the safety of their own to proceed at once to Saint lA.say'%, They rowed as fast as they could, the sea running so heavily that it was impossible to set sail until they got inside the neck of Crebawithen. They then set sail and got to &dnt Mary's between seven and eight a.m. Took the five men to an hotel, the first one that was rescued, whose name was West, having to be carried there. All these men recovered. 16. Whilst proceeding to Saint Mary's the crew of the 0. and M, took o£f their own clothes and wrapped up the rescued men in them and did all they could to promote warmth and circulation. Some of the crew had to be kept baleing. 17. The crew of the 0. and M, caught at Saint Mary's a steamboat going to Penzance with her steam already up. She immediately proceeded to the wreck taking the lifeboat and the 0. and M, in tow. One of the crew of the 0. and M, being a licensed Trinity House pilot went on board the steamboat and directed her to the wreck. The fogstill continued veiy thick. 18. The sea was so heavy that the steamboat shipped large quan- tities of water and three planks of the 0, and Af. two on one side fOid one on the other, were stove by the sea, so that she had to be cast off at Crebawithen and proceeded to Saint Mary's to repair. The 0. and M. was the first boat at the wreck. 10. Those on board the Guinevre a little time after those on board the 0, and M. saw the SchiUer in a break of the fog, went up to her, rowing through a quantity of wreckage, and saw two men floating in the water. These with great difficult^ and risk they succeeded in getting into the ChUnevr^. Both were m an exhausted condition. 20. The Ouinevre being in danger of being stove by the wreckage, those on bocurd her determined to proceed to Saint Maiy's, both for the safety of the men they had on board and to get more assistance. They got to Sdnt Mary's about seven a.m. Some of the crew took the two men on shore. These men recovered. Stephen Hicks went to the office of the Gterman Vice-Consul, the SchiUer being a German vessel, and reported the disaster to him. This was the first inti- mation he had of it. Whilst going to Saint Mary's the Guiwvre 476 APPENDIX. flalTftge. met two fishing boats. The crew of the Cruiaevre t«)ld those in the fishing boats of the accident and where to go. The fishing boats went and saved five other lives. 21. By the aforesaid services of the plaintififs ten lives were nveii, and the news of the disaster was first made known at Saint Mary's, the principal island, from whence other and further assistance was dispatched, and to the two fishing boats who saved five lives. 2d. The services of the plaintiffs, the crews of the four boats, were rendered at great risk to themselves. 23. A small portion only of the stores and hull of the SchUy have been saved, but various valuable portions of her caigo have been saved. The totd value of the property saved is j£40,OOO. The plaintiffs claim : — 1. Such an amount of salvage as to the Court may aeem just 2. Their costs of this action. 8. Such further or other relief as the nature of the case mar require. (TStU.) Statement of Defence. 1. The defendants admit the statements of fact in paragraphs 1 to 22, both inclusive, of the statement of claim. 2. The services of the plaintiffs to the passengers of the ScMUer were rendered at some risk to themselves, but not at great risk « alleged. 8. The said passengers were not the owners of the cargo proceeded against in this action, and the plaintiffs rendered no services to and did not attempt to save the saia cargo or the owners thereof. Socli cargo was saved under the circumstances in the next article men- tioned. 4. Some time after the wreck of the SchiUer^ and after the ressd was partially broken up and with her cargo had sunk in deep water and nad been abandoned by all concerned, the defendants detenniiwd to endeavour to raise six barrels of specie belonging to them, and which were known to be in the vessel's hold. The defendants tbeit- upon engaged a staff of divers and workmen and worked for many weeks at great expense and with great uncertainty as to the sncoes? (>/ their operations. During this time and so long as it remained doabt- ful whether the operations would not be altogether unprofitable, tite plaintiffs did not profess to be interested in or to have a claim against the cargo in respect of which the operations were proceeding. 5. Alter manv weeks of unsuccessful and unremuneiative open* tions, the defendants succeeded in raising four of the burrels of f^feof and a portion of the contents of another barrel of the total value of X40,000, and the specie so saved was conveyed to Penzance. Thl< specie is the cargo proceeded against in this action. 6. After the arrival of the specie at Penzance, the plaintifis weic induced by persons who had taxen no part in the salvage servicei^ to put forward the claim made in this action, and they consented to do so upon being indemnified against liability for costs ; and this scticia is being prosecuted in the plaintiffs' names under such indemnity. 7. Upon the arrival of tne specie at Penzance it was arrested in tw<> distinct actions by or in the names of certain of the pLaintiflfis in thf PRECEDENTS OF PLEADINGS. 477 present oonsolidated actions, and a third action was afterwards insti- Salvage. tuted against it on behalf of others of the said plaintiffs. The said actions were all commenced by the instructions of the same person acting or professing to act as agent for the plaintiffs and through the same solicitor, and the claim oi the plaintiffs might and ought to have been nut forward if at all in one action. 8. Numerous portions of the Schiller and of her tackle, apparel, and furniture had been saved and recovered by persons other than the defendants prior to the commencement of these actions, but the plaintiffs made no attempt to enforce a claim against such property. 0. The plaintifis respectively have received, or are entitled to receive, ana can upon application receive from the passengers to whom they rendered the said services, and from the owners or the SehiUer and from the Carman Government, ample remuneration for their said services. The Schiller at the time of her loss was a German ship, sailing under the German flag, and by the law of Germany the ship and the owners thereof and the passengers themselves are liable for the re- muneration of the services in tne statement of claim mentioned, and the defendants as owners of the cargo on board the said ship are not in the circumstances aforesaid liable for such remuneration. (TiOe.) Reply. 1. It is not true as stated in the 4th paragraph of the statement of defence that during the time therein mentionea the plaintiffs did not profess to be inter^ted in or to have a claim against the cargo therein mentioned. 2. The several allegations in the 6th paragraph are untrue. It is further untrue as stated in the 7th paragraph tluit the actions therein mentioned were all commenced by tne instructionB of the same person, or that the claim of the plaintiffs might or ought to have been put forward in one action. The costs of the separate institutions of the two suits and one action are trifling Tne several allegations in paragraphs 6 and 7 are immaterial 3. It is not true that any portion of the Schiller, or of her tackle, apparel, or furniture, which were or are of any appreciable value, had or nave been saved or recovered. 4. It is true as stated in paragraph 10 that the SchiUer was at the time of her loss a German ship sailing under the German flag, but with this exception the several allegations in paragraphs 9 and 10 are untrue. 6. At the time of the render of the services stated in the statement of claim the Schiller was a ship stranded or in distress on the shore of a sea or tidal water situate within the limits of the United Kingdom, and the services so stated were rendered wholly or in part in British waters. 6. Except as hereinbefore appears, the plaintiiEs join issue on the defendants* statement of defence. (Title,) Rejoinder. The defendants join issue upon the several paragraphs of the reply. 478 APPENDIX. 3. No. 26 (J. A.) Statement of Claim, Salvage. 1* The Brazilian is a screw steamer belongiog to the port of Nev- (Ship and castle, of the burden of 1359 tons gross registered tonnage, and Cargo), propelled by engines of 130-hor8e power, and at the time of the reDoerins of the salvage services nereinafter mentioned she waa navigated by her master and a crew of twenty-four hands. She left tlie port of Newcastle on the 27th of Novemb^, 1873, on a voyage to Genoa, and thence by way of Palmaras and Aguilaa to the Tyne, and about 10 a.m. on the 26th of December, 1873, in the course of her homeward voyage, with a cargo of merchandise, she was off the coast of Portugal, the Island of 0ns bearing about S.K by £., when those on board her si^jhted a disabled steamer about four points on their starboard bow, m-shore, flying signals of diatress. A strong gale was blowing at the time, and there was a very heavy aea runmng. 2. The Brazilian at onoe made towards the disabled steamer, which proved to be the Campanil, the vessel proceeded against in this action. She was heavily laden with a cargo of iron ore. The Brazilian^ as she approached the Campanil, signalled to her, and the CampanU answered by signal that her engines had broken down. By this time the CampanU was heading in-ahore, rolling heavOjr, and shipping a large quantity of water. The Brazilian came unHer the lee of tne CampanU and asked if she wanted assistanoe. Her master replied that he wanted to be towed to Vigo, as his vessel had lost her screw. The master of the Brazilian then asked those on board the CampanU to send him a hawser, and for a long time those on board the BrasiHan made attempts to get a hawser from the CampaniljKsid exposed themselves and their vessel to great danger in doing so. The wind and sea rendering it impossible to get Sie hawser whilst the BrassUian was to leeward of the CampanUf^ BrazUian went to windward and attempted to float lines by means of life buoys to the CampanU. During all this time the CampanU was quite unmanageable, and yawed am>ut, and there was veiy gnat difficulty in manoBuvring the BrazUian so as to retain command over her and keep her near the CampanU, It was necessary to keep constantly altering the engines of the BrazUian^ setting Uiem on ahead and reversing them quickly, and in consequence the engines laboured heavily, and were exposed to great danger of being stnuned. 8. Whilst the BrazUian was endeavouring to float lines to the CampanUy the CampanU made a sudden lurch and struck the BrazUian on her port quarter, knocking in her port bulwark and rail, and causing other damage to the vessel. Alter many unsae- cessful efibrts by those on board the Brassiliany and after they had lost two life buoys and a quantity of rope, a hawser from the CampanU was at length made fast on boara the BrazUian^ and the BrazUian^ with the CampanU in tow, steamed easy ahead. A second hawser was then got out and made fast with ooir springs, and the BrazUian then commenced to tow full speed ahead, each hawser haviug a full scope of ninety fathoms. 4. The BrazUia/n made towards Vigo^ which was about thirty five PRECEDENTS OF PLEADINGS. 479 miles distant ; the vessels made about two knots an hour, the Bros^iZum Balvagci keeping her engines going at full speed. The BragHian laboured yeiy heavily, and both vessels shipped large quantities of water. 6. About noon one of the tow-ropes broke, and both vessels were in danger of being driven ashore, broken water and rocks appearing to leewara, distant about two miles. After great difficulty the broken hawser was made fast again with a heavy spring of a number of puis of rope, and the Brazilian towed ahead under the lea of 0ns Island. 6. Shortly afterwards the weather moderated and the sea went down a little, and the BraaHian was able to make more way, and about 7 p.m. the same day she towed the CampanU into Vigo harbour insafej^. 7. The BraaUian was compelled to remain in harbour the next day to pay poi*t charges and clear at the Custom House. 8. Tne coast off which the aforesaid services were rendered is rocky and exceedingly danserous, and strong currents set along it, and but for the services rendered by the BrassiUan the CampanU must have gone ashore and been wholly lost, together with her cargo, and in all probability her master ana crew would have been downed. No other steamer was in sights and there was not any prospect of any other efficient assistance. 9. In rendering the said services the Brazilian and those on board her were exposed to great danger. Owing to the heavy sea, and the necessity of towing with a long scope of hawser there was great danffer of fouling the screw of the Brazilian, and it required constant vigiknce on the part of the master and crew to prevent serious acci- dent The master and crew of the Brazilian underwent much extra fatigue and exertion. 10. The damage sustained by the Brazilian in rendering the said services amounts to the sum of j£150, and the value of the extra quantity of coal consumed in consequence of the said services is estimated at £16. and £4 Is. bd, was paid by the owners of the Brazilian for haroour dues and other charges at Vigo. 11. The value of the CampanU, her cargo and freight, at the time of the salvage services were as follows, that is to say : The CampanU was of the value of £13,000, her cargo was of the value of £300, and the gross amount of freight payable upon delivery of the cargo laden on board her at Barrow-in-Furness was £675. 12. The value of the BrazUian, her freight and cargo, was about £25,050. The plaintiffs claim : — 1. Such an amount of salvage as to the Court may seem just : 2. That the defendants and their bail be condemned in costs : 3. Such further or other relief as the nature of the case may require. (TUU.) Stalemmt of Defence. 1. The defendants say that upon the 22nd of December, 1873, the iron screw steamship CampanU, of the burden of 660 tons register flnxMS, propelled by engines of 70-horse power, navigated by David Boughton, her master, and a crew of sixteen hands, left Porman, bound to BuTOW-in-Fomees, laden with a cargo of iron ore. 480 APPENDIX. ^Bftlvagre. a. At about 8 a.m. of the 26th of December, whilst the CampanH was prosecutiug her voyaf^, the shaft of her propeller broke ontdde the stem tube, and she lost her propeller. The CcmipanU wu then brought to the wind, which was south by east, blowing fresh, and « she proceeded under sail for Vigo, and continued to do so till about 9.30 a.m., when two steamships which had been for some time in sisht, and coming to the northward, approached the CampanU, The ensign of the CampanU was hoisted, union up, as a signal to one of such steamships, which afterwards came to the Camprge Tong, G^rge Short, and Robert Bums, as able seaman ; Arthur Brook, as orainary seaman ; Joseph Allen, William Freeman, Henry Brewer, Daniel Levenson, Heuiy Weather- son, James Dews, and Francis Loosemoore, as firemen ; Charles Hope, as leading stoker; and Alfred Cooke, as greaser. The material facts of the circumstances of the service having been stated, proceed. 11. The owners of the Romrio (the salved ship) and of her cargo have paid to the defendants, and the defendants have accepted, the sum of £750 for the services so rendered to the Rosario, but the defendants, though requested to do so, have refused to pay the plaintiffs their equitable portion of the said sum. And the plaintiffs claim : — 1. A declaration that they are entitled to an equitable proportion of the said sum of ^750. 2. That the defendants be ordered to pay such proportion to the plaintifis, together with the costs uf tliis suit. 3. Such further itnd other relief as the nature of the case may require. {TitU.) StatemeiU of Defence. 1. The defendants admit the truth of the first three paragraphs of the statement of claim. 2. The defendants admit that the Navarino fell in with and towed the Romrio to Gibraltar on the occasion in the statement of claim mentioned, but they deny the truth of the statement that the Roaario was lying in the trough of the sea quite unmanageable, and say that the service was penormed in moderately fine weather without difficulty or danger to the plaintifis, and that the service was mainly performed by the Navarino herself by means of her steam power. 3. The Rosario^ after the performance of the said service, went to Scotland and did not come within the jurisdiction of this Courts and the defendants, who reside in Hull, did not and were unable to enforce the claim of themselves and the master and crew of the Navarino to salvage in respect of the siud service. 4. The crew of the Navarino having made frequent applications to the defendants for the pajrment of their shares of the salvage in respect of the said services, and constantly importuning the de- fendants in respect thereof, sdthough the defendants had not received any amount in respect of such salvage, and had not agreed with the owners of the Rosario as to the amount to be received, the defend- ants determined to purchase their respective shares of the salvage from such of the crew as wished for an immediate payment, and, accordingly, by an indenture dated the 1 1th day of June, 1876, between the several persons, whose names are thereunto subscribed and seals are affixed of the one part, and the defendants of the other part, the said several persona, parties thereto of the first part, includmg all the plaintiffs except Cfeorge Short and Robert Burns, in consideration of the respective sums set opposite to their re- I I 482 APPENDIX. 8aW«^. Bpective names in the fourth oolnmn of the said achednle, paid hj the defendants to the said parties of the first part, each of the said parties of the first part assigned to the defendants all and eveiy the share, right, title, and interest of the said parties of the first part in the ulvafie or salvage reward and remonenitioo then dne, or there»fter to be due, or paid, or awarded in respect of the aalvage services set forth in the statement of claim, witn power for the de- fendants to sue for, receive, and give receipts for the salva^ and to use the names of the said parties of the first part. The defeDdants crave leave to refer to the said. indenture. 5. The sums so ^id to the said plaintiifiB respectively other than George Short and Kobert Bums were as follows : — £ <. d. William Bennett 10 0 John William Johnson 1 0 0 (And 90 on £i each.) 6. In the month of March, 1876, the Roaario being about to eome within the jurisdiction of this Courts her owners agreed to settle with the defendants for the said salvage, and paid the defendants in settle- ment thereof the sum of j£750 by a bill at three months' date. 7. In rendering the said service, the Navarino was delayed on her voyage, and consumed an extra quantity of coals, and her hawseis were injured, and a loss of about j^OO was thereby incurred by the defendants. The master of the Navarino having taken upon him- self the responsibility of rendering the service, the defendants have paid him the sum of £125 as his share of the salvage. 8. The defendants legally tendered to each of the plaintififa, Qeom Short and Robert Bums, the sum of i>4 in respect oi his share of the salvage before this action was brought, but each of them respectively refused to accept such sums. The defendants have brought sadb suras into Conrt ready to be paid to the said plaintiffs. 0. The defendants submit that the sum of ;£i so tendered Jo each of the said lastly-named plaintiffs was and is sufiident, and that the other plaintiflb are bound by the said indenture, and that the sums paid to them respectively thereunder were reasonable and {Title,) Reply and Demurrer, 1. The plaintiffs join issue on the 2nd, 8th, and 9th paragnq>h8 ol the statement of defence. 2. The plaintiffs do not admit the statements contained iu the 3id and 7th paragraphs of the statement of defence. 3. The plaintiffs demur to the 4th and 5th paragraphs of the statement of defence, and say that the same are bad in law on the ground that the said a^eement therein set out is void and in- operative under the provisions of the Merchant Shipping Act, 1854, and on other grounds sufficient in law to sustain this demurrer. 5. (liefe.) Statement of Claim. Towage. i. Ou the Ist day of April, 1877, the ship L, A., whereof the defendants are the owners, homeward bound, arrived off Souihend, PREGEDEXTS OF PLEADINGS, 483 and here the master of the said ship thereupon agreed to engage the Towage. steam -tug E,, whereof the plaintiffs are the owaers, to tow the said — ship up the Thames to St Kitherine's Dock for reward in that behalf. 2. The E. took the said ship in tow, and continued in charge of her until sho was placed in the said dock. 8. For the said services so rendered to the said ship as aforesaid there is due to the plaintiffs the sum of £ 4. The defendants have refused to pay the said sum of £ , and the same is still due and owing to the plaintiffs. The plaintiffs claim : — 1. Judgment pronouncing for the claim of the plaintiffis. 2. The condemnation of the defendants, and their bail in the coats of this action. 3. Sucli further or other relief as the case may require. (TiUe,) Statement of Defence and Gounterclaim, 1. The defendants admit the allegations in pargraphs 1, 2, and 4 of the statement of claim, and say furtner that it was an implied condi- tion of the agreement mentioned in paragraph 1 that the said ship L. should be sa^ly and properly, and with reasonable care, towed to the said dock. 2. The defendants deny that a sum of £ is due to the plaintiffs aS allowed in paragraph 3 of the statement of claim. 8. The defendants suy tliat at a time when the said steam- tug E, was in charge of the L., and as the vessels were proceeding up St Clement's Reach witti about 150 feet of tow rope between the said vessels, the said tug and ship came in sight of a ship or vessel theAf. 4. The wind wiis then south-west, the tide flood running from two to three knots an hour ; the M. was under sail and beating up the river and standing over on the port tack heading to the northward and westward. 6. The E., without receiving orders from the pilot, ported her helm and attempted to tow the L. ahead of the M. ; but in so doing the stem of the Z. struck the M, amidships on the starboanl side, and the L. ^ras in consequence thereof greatly damaged. 6. Such damage was caused by the negligent navigation and management of the E., and in consequence of acting without the orders of the pilot, and was a breach of the said contract entered into between the master K>f the steam-tug E. and the ship L., and releases the defendants from payment of the said sum of £ . 7. And by way of counterclaim the defendants repeat the allega- tions contained in paragraphs 3, 4, and 5 of the statement of defence. The defendants claim : — 1. A declaration that the defendants are entitleP£NDIX. Damftfe whatever nature and kind soever excepted) onto the pUintifii of to Cargo. London, or to their assigns, paying freight, ffratuity, and demutnge (if any) for the said goods, and other oonditionSy as per charter- party. 8. The Express doly sailed on her said voyage with the said cargo on hoArd, and in the course of the said voyage without any jnstifiabie cause or excuse put into the port of Gibraltar. After the said vessel had so put into the said port^ and whilst she was lying there, her master was requested by the plaintiffs to proceed on the before- mentioned voyage, and if he would not do so then to tranship and forward the said caigo. 4. The said master however declined to comply with such request, and remained at Gibraltar with his said vessel, vvith the said cargo on board of her, a very considerable time. 6. By reason of the premises the said master wrongfully and with- out justifiable cause, in violation of the terms of the said bill of lading, deviated from and delayed proceeding on the voyage in the said bill of lading mentioned. 6. The plaintiffs were and are tlie owners of the said cai^, and the holders of the said bill of lading. 7. By reason of the premises, the said cargo became and wvs greatly heated, damaged, and depreciated, and the said cai^ was delivered to the plaintiffs in a much worse order and condition than it was shipped in, this not being occasioned by any of the perils, causes, or matters in the said bill of lading excepted ; and thereby the plaintiffs have sustained great loss, and have been deprived of divers profits which they would otherwise have derived from the said cai^o. The plaintiffs claim : — 1. £ for damages. 2. The condemnation of the said vessel, and the defendants and their bail in the same, and in the costs of this action. 3. Such further or other relief as the case may require. {TiiU.) /Statement of Defence. Befenoe. 1. In the month of May, 1870, the E^resSy which then was and ever since has been, and still is, a vessel sailing under the flag of the NorUi German Confederation, and belonging to the port of Boetock, in the Duchy of Mecklenburg, one of the States of the said CionfederaticMi, and owned by persons being subjects of the said Confederation, was lying in the port of Constantinople, and on the third day of the said month of May, a charter-party was made and entered into between Wilhelm FreUurvnty the master of the Express^ and Messrs. SckoU and Reppeny merchants of Constantinople, and subjects of the said Confederation. By such charter-party it was agreed that the EsBpreu^ under the German flag, should proceed to a loading place in the Axo&, as ordered at Berdianski, and there load from the factors of the fiteighter a full and complete cargo of tallow, wheats Indian com, seed, or other stowage goods, at the option of the ireijg^hter ; and being so loaded should therewith proceed to a safe port in the United King- dom, or a safe port on the Continent between Havre and Hambaxg PBECEDEKTS OF PLEADINGS. 491 • both induaiTe, or so near thereunto as she might safely get, (aiUisg at Damage Queenstowii, Falmouth, or Plymouth, at the masters option, and to Cargo deliver the said cargo on being paid freight as therein mentioned (the act of God. the Queen's enemies, restraint of princes and rulers, fire, and all and every other dangers and accidents of the seas, rivers, and navigation always excepted). 2. In pursuance of the terms of the said charter-party, the Express proceedcKl to Taganrog which was the loading port in the seaof Azolf for which she received orders at Berdianski, and the plaintiffs wh« • were the factors of the freighters within the meaning of the saiU charter-party caused to be shipped upon the Express at Taganrog a cargo of rye in bulk, and the master of the Express mgaed and de- livered to tiie plainti& a bill of lading in respect of the said cargo in the words and figures foUowing, that is to say [the bill of lading should be set out at lenatK\. 3. On the 29th of June, 1870, the E,cpress set sail from Taganrog, with the said caigo and proceeded on her voyage, and on the 16th day of August, 1870, cast anchor off Algesiras with the intention of filling up her water casks, strong winds from the north-westward having for some days prevented and still continuing to prevent her from working through the Straits of Gibraltar. 4. After the sailing of the said ship from Taganrog, and 1)efore she anchored off Algesiras as aforesaid, war broke out and was declared between the Empire of France and the States of the said Confederc- tion, and such war continued to exist down to and existed at the time when the Express anchored off Algesiras as aforesaid, and by reason of such war ihe Express became and was liable to risk of capture. 6. Upon arriving at Algesiras as aforesaid, the master of the Express was inform^ of the outbreak and existence of the said war, and learned that it would be dangerous for the Express to proceed upon her voyage owing to the risk of her being captured by French cruisers at sea, and on the 18th day of August, 1870. the master of the Express, as he lawfully might do under and by virtue of the laws of MecKlenmirff and of the said Confederation, and as was reasonable and proper for liim to do under the circumstances herein set forth, sailed with the Express from Algesiras and proceeded to and on thu same day arrived in the roadstead of Gibraltar, which was a safer and more sheltered anchorage than that of Algesiras. It is not the fact that the master of the Express without justifiable cause and excuse, or wTongfxilly or in violation of the terms of the said bill of lading, put into the port of Gibraltar as alleged in the 3rd and 5th paragraphs of the statement of claim. 6. On the 30th day of January, 1871, the inaster of the Express re- ceived intelligence that an armistice had been concluded between France and the said States of the North German Confederation, and thereupon immediat'^ly began to prepare the Express to proceed upon her voyage, and on the 2nd day of Februaiy, 1871, the news of an aimistioe having been confirmed and the necessary preparations com- pleted, the Express set sail from Gibraltar to complete her voyage. 7. From the time of the arrival of the Express at Algesiras until the 30th day of January, 1871, the said war continued to exist, and during all such time the Express would have been liable to risk of capture if ahe had attempted to proceed upon her voyage; and during 492 APPENDIX. Damage all such time armed French cruisers were cmising off the Straits o« to Cargo. Gibraltar and in the Atlantic Ocean, and in the English Channel, and off the ports of Cork, Falmouth, and Plymouth, with the intention of capturing the Expren and other North German vessels ; and, if the Express had during the time aforesaid attempted to proceed on her voyage, she would certainly have been captured by some or one of such cruiaers. 8. It is not the fact that the master of the Express unjustifiably or in violation of the said bill of lading delayed proceeding on his voyage as alleged in the 5th paragraph of the statment of claim ; on the contrary, the said master was always ready and desirous to proceed from Gibraltar as soon as he could do so without being exposed to risk of capture. 9. By the law of the North German Confederation the master of the Express was entitled to keep her at Gibraltar whilst she would have been liable to risk of capture at sea by reason of the said war, and the said master was not, whilst the said war and liability of capture continued, under any obligation to attempt to proceeed f ortiier upon his said voyage ; and by the said law the master of the depress was not guilty of any breach of contract or duty with or to the plain- tiffs in respect of his putting into Gibraltar or remaining there with the Express with the said cargo on board of her, or in respect of not tzanshipping the said cargo. 10. The master of the Express sailed from Gibraltar with the Express within a reasonable and proper time after receiving notice of the termination of the risk of capture by reason of the said war. 11. On the 17th day of February, 1871, the Express arrived in Fal- mouth Harbour, and her master having duly given notice of his arrival to the cluurterers' agents in London, on the 20th day of the same month received orders to proceed to London, and on the same day the Express left Falmouth, and on the 26th day of February, 1871, arrived in London. 12. On the 28th day of the said month of February, the discharge of the cargo was commenced ; and on the 2nd day of March, 1871, such discharge was completed. 18. It is not the fact that the cargo of the Express wsa delivered in worse order and condition than it was in when shipped. 14. If the said cargo was delivered in worse order and condition than it was when shipped, the deterioration was caused by the deten- tion of the Express at Gibraltar as hereinbefore mentioned, which is an exceptive peril within the true intent and meaning of the ex- ception of " the Queen's enemies" contained in the said bill of ladings and by the natural condition and inherent vice of the said cargo, or by one of such causes. 15 . Whilst the said vessel was detained at Algesiras and Gibraltar as aforesaid, the master of the Express used afl due and proper, and reasonable care and skill in ventilating, trimming, and otherwise caring for the said cargo, and did all things on bis part to be done in taking care of the same, and any deterioration or depreciation of the said cargo was not caused by any neglect or defaidt of the said master, bat was caused by the detention of the said vessel as aforesaid, and by the natural condition and inherent vice of the said caigo, or by bo^ PRECEDENTS OF PLEADINGS. 493 of these caoaes ; and by the law of the said North German Confedera- Jtemage lion, regard being had to the terms of the said bill of lading and to Cargo, charter-party, neither the Express nor her owners nor the said master is or are liable to damages in respect of the depreciation or deteriora- tion of the said cargo. 16. Save as herein appears the defendants admit the several allegations contained in the statement of claim. (TiOe.) Beply, The plaintiffs join issue on the defendants' statement of defence. 9. No. 8 (J. A.). (Title.) Statement of Claim, 1. The Ida is a vessel of which no owner nr part owner was, at Damage the time of the institution of this cause, domiciled in England or ^ cargo. Wales (a). 2. In the mouth of Februar}', 1873, Messrs. L. and Company of Alexandria, caused to be shipped 6110 ardebsof cotton seed on board the said vessel, then lying in Port Said (Egvpt), and the then master of the vessel received the same, to be carri^i'rom Port Said to Hull, upon the terms of three bills of lading, signed by the master, and delivered to Messrs. L. and Company. 3. The three bills of lading, being in form exactly similar to one another, were and are, so far as is material to the present case, in the words, lettci's, and figures following, that is to say : — " Shipped in good order and well conditioned by L, dc Go.^ Alexandria (Egypt) in and upon tlie good ship called the Ida, whereof is master for the present voyage Ambrozio Chiapella, and now riding at anchor in the port of Port Said (Egypt) and bound for Hull, six thousand one hundred and ten arbeds cotton seed being marked and numbered as in the margin, and h re to be delivered in the like good order and well-conditioned at the aforesaid port of Hull (the act of God, the Queen'd euemies, fire, and all and every other danger^ and accidents of the seas, rivers, and navigation of whatever nature and kind soever, save risk of boats so far as ships are liable thereto, excepted), unto order or to assigns paying freight for the said goods at the rate of ^19^.) nay nineteen shillings sterling in full per ton of 20 cwt. aelivered, with £10 gratuitv. Other conditions Jis per charter-party, dated London, 4tn October, 1872, with primage and average accustomed. In witness whereof the master or purser of the said ship hath afiSrmeii to three bills of lading all of this tenor and date, the one of which three bills being (a) A Btatoroent to this effect may he inserted if the at^tion be under sect e of the Admiralty Act, 1861. 404 APPENDIX. W»gw. Wagei. accomplished the other two to stand void. DstedinPort Said (£gypt) 6th Febroary, 1873. 100 dannage mats. Fifteen working days remain for discharging.'* 4. The per^ions constituting the firm of Messrs. Z. and G(m}nni are ideutic&l with the membm of the phdntiffs' firm. 6. The vessel sailed ou her voyage to Hull, and duly anivetl theru on or about the 7th day of May, 1873. 6. The cotton seed was delivered to the plainiiif:* but not in u good order and condition an it was when shipped at Port S.%id ; bat was delivered to the pluinttfis greatly damaged. 7. The deteriuraiioti uf the cotton seed was not occasioned by anj of the perils or causes in the bills of lading ezoeptetl. 8. By reason of the premises the plaintifb lost a great part of tbe value of the said cotton seed, and were put to great expense in auJ about keeping, warehousing, and improving the condition of the ^i*i cotton seed, and in and about having the same surveyed. The plaintiffs claim the following ivlief : — 1, £ for damages, [and the condemnation of the said Tea^^l and the defendant and his bail in the same] : 2. Such further relief as the nature of the case requires. StatemsiU of D^euce. 1. They deny the truth of the allegations contained in the sixth, seventh, and eighth articles of the statement of claim. 2. The deterioration, if any, to the cotton seed whs occasioned by the character and quality of the cotton see shipping water in a severe storm which occurred on the diy of , in latitude during the voyage, or by some or one of such causes. (TitU.) Reply, The plaintiffs join issue upon the statement of defence. 10. Statement of Claim, 1. The plaintiff, IP. m August 20th, 1876. 8. The plaintiff having proceeded to Liverpool, according t<> tbe terms of tne said agreement, took command of the said vessel aiid continued to command from August 20th to November 20th, 1876. 4. As such master, and whilst he was in command of the iflti'i ship, wages became due to the plaintiff; the plaintiff also properly PRECEDENTS OF PLEADINGS. 495 made the disbursementa and incurred the board expenses hereinafter V*g— » claimed, from August 20th to November 20th, 1876, and audi wages, disbursements, and expenses still remain dae to him and unpaid, and the plaintiff cannot obtain piynient thereof without the aasistance of the Court 5. The claim of the plaintiff consists of the following items : — £ 8. d. Wages from 20th August to 20th November, 187 , at 125 dollars (£25) per month 76 0 0 Passjage money from New York to Liverpool .. 15 0 0 Ten weeks board in Liverpool at £2 2«. i)er week.^. 21 0 0 Marketing for ship, coals lor same, and disburse- ments for hauling and watching same 16 0 0 Total ...-£127 0 0 Together with interest at 5 per cent, on the said sum of £127 until judgment The plaintiff claims : — 1. Judgment pronouncing for the claim of the plaintiff. 2. The condeui nation of the said ship, the defendant and his bail therein, and the costs of the said action ; {if no ajjpearance by a defendatit fiaa been entered^ or bail give7i, add) and that she be sold by order of the Court, and that the claim of the plaintiff be satisfied from the proceeds of the said sale. 3. Such further or other relief as the nature of the case may require. (TitU,) Statement of Defence. 1. The defendant admits the statements in the first, second, and third jgaragraphs of the statement of claim. 2. The defendant as to the fourth paragraph of the statement of claim says that the plaintiff whilst in command of the said vessel was frequently and habitually in a state of intoxication, and in conse- quence of his said state the said vessel was detained for three days at Liverpool, whereby the voyage was unnecessarily protracted, and losses were incurred by the defendant through the improper conduct of the plaintiff. 3. The defendant denies that the said expenses and disbursements were necessary or proper. 4. The defendant pays into Court the sum of £15, and says that the same is enough to satisfy the claim of the plaintiff herein. liepli/. The plaintiff takes issue on the defendant's statement of defence^ and accepts the said sum of £15 in satisfaction of a part of his claim. 49^1 APPENDIX. Neoei- 11. _ ■^•■- _ No. 12 (J. A.) (Title.) Statement of Claim, 1. The said vessel was and is a Britisli Colonial vessel belonging to the port of Digby, in Nova Scotia, of which no owner or part ownei was at the time of the commencement of this action or ia domiciled in England or Wales. 8. At the time of the commencement of this action the said vessel was under arrest of this Court 3. About the month of February, 1868, the said vessel was lying in the port of London, in need of repairs, and of being equipped and supplied with certain other necessaries. 4. By the order of Messrs. K, L., who were duly authorized, the plaintiffs equipped and repaired the said vessel as she needed, and provided the vessel with necessaries, and thei-e is now due to the plaiutitfB for such necessary repairing and equipping, and otherneobs> saries, the sum of £305 3j(., together with interest thereon from the 19th day of February, 1868. The plaintiffs claim : — 1. Judgment for the said sum of j£305 3^., with such interest thereon as aforesaid until judgment. 2. The condemnation of the ship and the defendant and his bail therein and in the costs of this suit. li. Such further relief as the nature of the case require*^ (TiUe,) Statement of Defence, 1. By an instrument of mortgage, in the form and recorded a? prescribed by the Merchant Shipping Act, 1854, bearing date the 9th of March, 1867, and executed by U. Jf., blacksmith, JD. /*., master mariner, and W. if., farmer, of Weymouth, in the county of Digb^, in Nova Scotia, the registered owners of 64- 64th parts or shares in the vessel, the said C M., D. F., and JV, J7., mortgaged 64-64th parts or shares in the vessel, of which the said D. F. wus also master, to (J, T, of Nova Scotia, in consideration of the sum of 5(XX) dollan advanced by him to the said owners, and for the purpose of se- curing tlte repayment by them to him of the said sum with interest thereon. 2. By an instrument of transfer, dated the 16th of July, 1868, in the form prescribed by the said Act, and executed by G, T^ in oonsi- deration of the sum uf 5000 dollars to G. T. i>aid by the defendant, O, T. transferred to the defendant thn mortgage security. 8. The said sum of 5000 dollars, with interest thereon, still remains due on the said security. 4. The vesBel was not under the arrest of this Court at the time of the commencement of this action. 6. The vessel did not need to be equipped or repaired as in tbe fourth paragraph of the plaintiff's claim mentioned, and she did not at the time of tlie supply of the articles referred to in the said (burth PRECEDENTS OF PLEADINGS. 497 paragraph as ** neoeflsaries " stand in need of each articles. On the 1^ •ces- oontrarj, the said ressel could have gone to sea and proceeded on and '*'^— » prosecnted her voyage without such equipments, repairs, and articles referred to as aforesaid, and such equipments, repairs, and other articles were done and effected and supplied for the purpose of re- ckssiug the said vessel, and not for any other purpose ; and the daim of the plaintiffs is not a claim for necessaries within the meaning of the Admiralty Court Act, 1861, s. 5. 6. The alleged necessaries were not supplied on the credit of the said vessel, hut upon the personal credit of J. B., who was the broker for the vessel, and upon tne agreement that the plaintiffe were not to have recourse to the vessel. 7. The defendant did not, nor did 0. T. , in any way order, authorize, or become liable for, and neither of them is in any way liable in respect of the said alleged supplies or any part thereof, and the said vessel was at the time of the commencement of this action, and she still is, of a less value than the amount which, irrespective of the sums referred to in the next article of this answer, is due to the defendant on the said mortgage security. 8. The defendant, in order to save the vessel from being sold by this Court at the instance of certain of her mariners having liens on the said vessel for their wages, has been compelled to pay the said wages, and he claims, if necessary, to be entitled to stand in the place of such mariners, or to add the amounts so paid by him for wages to the amount secured by the said mortgage, and to have priority in respect thereof over the claim of the plaintiffs. {TiUe.) Reply, 1. The plaintiffs admit that 64-64th shares in the said ship, the Two EUens, were on or about the 9th day of March, 1867, mortgaged by the said C. Af., D. F,y and W, IT., all of Weymouth, in the county of Digby, Nova Scotia, to the said G, T, 2. Save as aforementioned, all the several averments in the said answer contained are respectively untrue. 8. If there was or is any such instrument of transfer as is men- tioned in the second article of the said answer, the same has never been registered according to the provisions of the Merchant Shipping Act, 1864. 4. The said G, T. has never been domiciled in or resided in the United Kingdom, and is now resident in Nova Scotia, and the regis- tered owners of the said vessel in the first paragraph of the said defence mentioned were always and are domiciled in Nova Scotia, and resident out of the United Kingdom. (Title.) Rejoinder. The defendant joins issue upon the third and fourth paragraphs of the reply. KK 498 APPENDIX. li. No. 19 (J. A.) (TitU.) SUUemerUof Ctaim, Iqnip- L The plointiflB were at the time hereinafter stated uid an meat of engineers and ironfoundere, eanying on bosineae at Liyerpool, in the ■hip. ooontT of Lancaster. 8. In the month of January. 1872, whilst the abore-nanied itetni' ship ErUerprise, belonffing to the port of London, was in the port (tf Liverpool, the plaintiffs, haying received carders from the master jb that behalf, ezecated certain necessary work to her and supplied her with certain necessary stores and materials, and caused ber U) be supplied upon their credit with certain necessary woik, labonr, materials, and necessaries, and thereby supplied the said ship with necessaries within the meaning of the fifth section of liie Admixal^ Court Act, 1861. 8. There is due to the plaintifb in respect of such sapplj of necessaries to the said ship tne sum of £677 2s. 6d., and the puandfi cannot obtain payment thereof without the assistance of the Coort The plaintifm claim : — 1. Judgment pronouncing for the claim of the plainlifb : 2. The condemnation of the defendants and their bail therds, with costs: 8. A reference, if necessary, of the daim of the plaintifi to the r^istiar, assisted by assessors, to report the amoont thereof: 4. Such further relief as the nature of the case requires. (TitU.) Drfeneo. 1. The defendants deny the allegations contained in tbe tluTl insufficiently, and of the materials so supplied, some were had aod insufficient, and a portion of the work in the claim mentioned was done in and about altering and endeavouring to make good sndi bid and insufficient work and materials. The defendants have piidio respect of the work and materials in the daim mentioned tbe nm of ;£356 17b. 9(2., and the said sum is sufficient to satisfy the claiios of the plaintiffs. 8. The defendants deny the alleffations contained in the seoo&i paragraph of the claim, so far as wey relate to any daim bejoovi the said sum of £356 17<. 9d,, and say that if the plaindfb ^ execute any work or did supply any materials other than the woA and materials mentioned in the second paragraph of this defeo<%T such work was not necessary work, and such materials were no^ necessary materials within the meaning of the fifth section of tb« Admiralty Court Act, 1861, and were not supplied in such dream' stances as to render the defendants Ijable to pay for the same. PRECEDENTS OP PLEADINGS. 499 (TUU.) PoiMk liOXL lUply. — The plaintaflb join iasne apon the defendants' statement of defence. No. 21 (J. A.) [TiiU.) Staiement of Claim, 1. On or about the 16th of July, 1868, an agreement was entered Posiei- into between the plaintiff and J. />., who was then the sole owner sion. of the barque Lady of the Lake, whereby J. I), agreed to sell, and the plaintiff agreed to purchase, 32-64th parts or shares of the vessel for Uie sum of £500 ; payment j£300 in cash, and the re- mainder by purchaser's acceptances at three and six months date, and it was thereby agreed that the plaintiff was to be commander of the vessel. 2. The plaiiftiff accordingly paid to J, D, the sum of £300, aud Save him his (the plaintiff's) acceptances at three and six mouths ate for the residue of the said purchase-money, and J. D, by bill of sale transferred 32-64th parts or shares in the vessel to the plaintiff, which bill of sale was duly registered on the 18th of July, 1868 ; the plaintiff has since been and still is the registered owner of such 32-64th shares. 8. The vessel then sailed under the plaintiff^s command on a voyage from Sunderland to the Brazils ana other ports, and then on a homeward voyage to Liverpool, where she arrived on the 18th of June, 1869, and having there discharged her homeward cargo she sailed thence under the plaintiff's command with a cargo to the Tyne, and thence to Sunderland, at which port she arrived on the 9th of August^ 1869. 4. The plaintiff then made several ineffectual applications to /. 2>.. with a view to obtaining another charter for tne said vessel, and after she had been lyinff idle for a considerable time, the plainti£^ on or about the 16th of September, 1869, obtained an advantageous charter for her to proceed to Barcelona with a cargo of coals, and with a view to enaolinff her to execute such charter, the plaintiff paid the dock dues and moved the vessel into a slipway in order that her bottom might be cleaned, but on or about the 17th of Sep- tember, whilst the vessel was on the shore adjoining the slipway, the defendant, to whom the said J. D, had in the meantime trans- ferred his 32-&4th parts, forcibly took the vessel out of the possession of the plaintiff, and refused and still refuses to allow the plaintiff to take the vessel on her said voyage to Barcelona, and by reason thereof heavy loss is being occasioned to the plaintiff. The plaintiff claims : — 1. Judgment giving possession of the vessel Ladjjf of the Lake to the plaintiff : 2. The conaemnation of the defendant in costs of suit, and in kk2 500 APPENDIX. PoMM. all loHes and dttnafles oocadoned by the defendant to tiie ■^ plaintiff: 3. Such further relief as the nature of the case leqnirea. (Tide.) Btfence. 1. The defendant aajs that the aooeptanoea in the aeoond pangiwh of the claim mentioned were reapectiTely diahononred by tne plaintiff, and have never yet been paid by him. 2. It waa agreed between the plaintiff and J. D^ that /. D. ahoold act, and he has since always acted, as ship's huabond of the Ladif rf the Lake, 8. On the Slst of An^t, 1869, /. D. sold to the defendant for the sum of £400, and by bill of sale duly executed tranafened to him, his 32-64th shares, and the bill of sale waa duly rqpstered on the 14th of September following. 4. After the Ladv of tM Lake had arrived at Sunderland, and after the defendant nad purchased from /. D. his 32-64th aharea of the Lady of the Lake, the defendant placed the vessel in the custody and possession of a diipkeeper. The plaintiff, however, unlawfully removed her from such possession, and thereupon the delendant had the vessel taken into the South Dock of the harbour at Sunderland, with orders that she should be kept there. What the defmdant did, as in this article mentioned, he did with the consent and full ap- proval of J, D, 6. At the time of the sale of the Lady of the Lake by J. D. to the defendant as aforementioned, there waa aod there still is due from the plaintiff as part owner of the Lady of the Lake, to J. D^ ai part owner and ship's husband, a sum of money exceeding j6300 in respect of the vessel and her voyagea, over and above ^e amount of the unpaid acceptances. 6. Save as herein appears, the averments in the fourth pangraph of the claim contained are untrue, and if the charter-party mentumed in that paragraph was obtained by the plaintiff as allied, whidi the defendant does not admit, it was obtained by him without the authority, counsel, or knowledge of/. D. or the defendant. 7. Before the defendant took possession of the vessel aa nlbie- mentioned, the plaintiff ceased to be master of her with the ocmaent of /. Z>. or the defendant 8. /. D, haa instituted an action against the said veasel in in Older to have the acoounta taken between him and the plaintiff, and to enforce payment of the money due firom the plaintiff- to him. (TiOe.) B^y, 1. The plaintiff says in reply to the first paragraph of the defence that the bills therein mentioned were dishonoured by the pl^JT^^'flr because /. D. was indebted to the plaintiff in a lai^ amount for his wages as master, and for his share of the earainga of the Lady of the Lake^ and refused payment thereof. PRECEDENTS OF PLEADINGS. 501 2. J,D, did not place the vessel in the exdnaive custody or pos- Xbrtgagc. session of a shipkeeper as in the fifth paragraph of the defence stated or implied. On the contrary, the vessel continued in the custody and possession of the plaintiff, who still holds her register. A man was sent on board the vessel by J» D. to look after J. D.*s share in the said vessel while she was in dock, but he did not dis- possess the said plaintiff or take exclusive possession of the vessel, and the plaintiff was not dispossessed of the vessel until on or about the 17th of September last. 8. Except as hereinbefore appears, the plaintiff joins issue upon the defendant's statement of defence. (TiOe.) Befomder, The defendant joins issue upon the first and second paragraphs of the reply. 14 {Title.) StatemeirU of Claim, 1. By an indenture dated the 10th day of June, 1877, made be- Xortgage tween one A. j8., then being the sole owner of the ship W, 0., of the one part, and the plaintiff of the otlier ]^art, the saia A. B., in con- sideratiou of the sum of JlOOO paid to him by the plaiutiff, conveyed to the plaintiff 64-64th parts in the said ship fV, 0., subject to a pro- viso for the redemption of the same on payment by the said J.. ^., his executors, administrators, or assigns, to the plaintiff of the sum of J^IOOO, with interest for the same in the meantime at the rate of 5 per cent, per annum, on the 25th day of September then next ensuinjor. 2. 'Ae whole of the said sum of ^1000, with an arrear of interest thereon, remains due to the plaintiff on his said security. The plaintiff claims : — 1. Judgment giving possession of the said ship W, 0* to the plaintiff. 2. The condemnation of the defendant in the costs of the action. 3. Such further or other relief as the nature of the case may require. Statement of Defence, 1. The defendant admits the allegation in the plaintiff^s statement of claim. 2. The defendant says that the said A. B^jhy deed dated the 1st day of January, 1877, made between the said A, B. of the one part and the defendant of the other part, in consideration of the sum of j£1000 paid by him to the saia A. B,, conveyed to the defendant 64-64th parts in the said ship W, 0., subject to a proviso for the redemption of the same on payment by the said J^. B., his executors, 502 APPENDIX. adminiBtraton, and aaaigng, to the plaintiff of the som of JtlOOO, wiUi interest for the same in the meantime at the rate of 5 per oeaL per annum, on the let day of November then next ensuing. 8. The whole of the said sum of ;^000 with arrears of interest was due and owing on the 20th daj of November, when the defendant took possession of the said ship, and the value of the said ship ia less than the said sum of ^£1000^ together with the arrears of interest (TUle.) Hie plaintiff joins issue on the defendant's statement of defence. 15. No. 9 (J. A.) {Titk.) Statement of Claim. Bottomrj 1. The Owward, a ship of 933 tons raster, or thereabouts, he- longing to the United States of America, whilst on a voyage from Moubnein to Queenstown or Falmouth for orders, and from thenoe to a port in the United E[ingdom or on the Continent, between Bordeaux and Hamburg, both ports inclusive, laden with a cargo of teak timber, was compelled to put into Port Louis, in the island of Mauritius, in order to repair and refit 8. The master of the Onward being without funds or credit at Port Louis, and being unable to pa^ the exnense of the said rqpain, and the necessary disoursements of the said ship at Port Louu, so as to enable the said ship to resume and prosecute her voyage;, and after having communicated with his owners and with the owneis and consignees of the cargo, was compelled to resort to a loan of 24,369 dolhtfs on bottomry of the said ship, her cargo and freight, for the purpose of enabling him to pay the said expenses and dis- bursements, which sum Messrs. H. and Company y of Port Louis, at the request of the master by public advertisement, advanced to the said master at and after the rate of 128 dollars for every 100 doUus advanced, and accordingly the said master, by a bond of bottomry dated the 13tJ^ of OctoMr, 1870, by him ddy executed in considera- tion of the sum of 24,369 dollars, Mauritius currency, paid to him by the said Messrs. ff. and Company, bound himself and the said ship and her cargo, namely, about 940 tons of teak timber, aiui her freight, to pay unto Messrs. H. and Company, their aasigna, or oidff or indorsees, the said sum of 24,369 dollars, with the aforesaid maritime premium thereon, within twenty days next after the arrival of uie Onward at her port of diBchai|;e from the said intended voyage, ^e said payment to oe made both m capital and interest ia Bntiah sterling money, at and after the rate of 4«. for every dollar, with a condition that in case the said ship and cargo should be lost during her voyage from Port Louis to Queenstown or Falmouth for orders, and thenoe to her port of discharge in the United ^^^i^g^i^^ PBECEDENTS OF PLEADINGS. 503 or on the Continent between Bordeaux and Hambui^, both ports Bottomry, inclosiye, then that the said sum of 24,369 dollars, and mantime premium thereon, should not be recoverable. 8. The Omfard subsequently proceeded on her voyage, and on the 7th of February, 1871, arrived with her cargo on boani at the port of Liverpool, which was her port of discharge. 4. The bond was duly indorsed and assigned to the plaintiffs. G. The ship has been sold by order of the Ck)urt, and the proceeds of the sale thereof 'have been brought into Ck>urt, and the freight has also been paid into Court 6. The said sum of 24,369 dollars, with the maritime premium thereon, still remain due to the plaintiffs. By a decree maae on the 10th of May, 1871, the Court pronounced for the validity of the bond, so far as regarded the ship and freight, and condemned the proceeds of the ship and freight m the amount due on the bond. The principal and premium still I'emain owing to the plaintiffs, and the proceeds of the said ship and her freight available for payment thereof are insufficient for such payment. The plaintiffs claim : — 1. That the Court pronounce for the validity of the bond so far as reffaids the cargo : 2. That the Court condemn the defendants and their bail in so much of the amount due to the plaintiffs on the bond for principal, maritime premium, and for interest from the time when such principal and premium ought to have been paid, as the proceeds of the ship and freight available for payment of the bond shall be insufficient to satisfy, and in • costs : 3. Such further relief as the nature of the case requires. Siaiement of Defence. The defendants say that the — 1. Several averments in the secoud article of the statement con- tained are respectively untrue, except the averment that the bottomry bond therein mentioned was given and executed. 2. The Onward proceeded on the voyage in the first paragraph of the claim mentioned, under a charter-party made between the de- fendants and the owners of the vessel, who resided at New York. And the cargo in the said paragraph mentioned belonged to the defendants, and was shipped at IV&ulmein by Messieurs. T., F, and Compmw, of Moulmein, consigned to the defendants. 8. When the Onward put into Port Louis, the master placed his ship in the hands of Messrs. H, and Com/panyy the persons in the second paragraph of the claim mentioned, and the repairs and dis- bursements m the said second article mentioned were made, directed, and expended under the orders, management, and on the credit of the said Messrs. H, and Company, who at the outset contemplated the necessity of securing themselves by the hypothecation of ^e ship, freight, and cargo. 4. The master of the Onward, and Messrs. R, and Company, did not communicate to the said shippers of the cargo, or to the defend- 5(M APPENDIX. Bottomry, ants who carried on bnainefls at Glasgow, as the maater knew the — intention of hypothecating the ship, freight, and cargo, or the di- cumstances which might render such hypothecation advisable or necessary, but on the contrary, without reasonable cause or excuse, abstained from so doinff, although the oomparatiyely small value of the ship and freight to oe eamra rendered it tiU. the more important that such communication should have been made. 6. A reasonable and proper time was not allowed to elapse between the advertiBements for the bottomry loan and the aoceptanoe of Messrs. H. and Compan^fi offer to mi^e such loan. 1. The plaintifib say that the defendants, since the 3l8t day of December, 1868, have been the only persons forming the firm of T., F. and Company ^ of Moulmein, mentioned in the third paragraph of the defence. 2. After the master of the Onward put into Port Louis as afore- said, he employed Messrs. H. and Company y in the claim mentioned as his agents, and by his directions they by letter communicated the defendants' firms at Moulmein and Glasgow the circumstances of the ship's distress and the estimated amount of her repairs. 8. The said Messrs. H. and Company shortly after the said ship was put into their hands at Port Louis, offered the said master, in case he should require them to do so, to make the necessary advances for the ship's repairs, and to take his draft at ninety days' sight on Messrs. B, £rotherSy of London, at the rate of five per cent discount for the amount of the advances, together with a bottomry bond on ship, cargo, and freight as collateral security, the bond to be void should the draft be accepted. The said master and the said Messrs. JET. and Company, by letter, communicated to the owners of the Onward the circumstances of the said ship's distress, and the afore- said offer of the said Messrs. H, and Company, and the said master by his letter requested the said owners to give him their directi taining the persons who have any claim in respect of loss or damage to ship's boats, goods, and merchandise, or other things occasioned by the said collision, and that proper directions may be given for the exclusion of any claimants who shall not come in within a time to be fixed for the purpose. 6. That the plamtifiis may have such further and other relief as the nature of the case may require. Delivered the day of , 188 , by P. and Co^ of solicitors for the plaintiffs. (TiUe.) Statement of Defence of the owners of the Genevieoe. Thu defendants do not admit the truth of the allegations contained PBfiCEDENTS OF PLEADINGS. 507 in paragraphs 4, 5^ and 9 of the Btatement of claim, except so far as limita- relates to the submiBsion of the plaintiffs in the said paragraph 9. .^^H.^' Delivered the day of , 188 , by S. and Co., of *"^^^^' solicitors for the defendants. {TiUe,) StaUmffid of Dtfmce on behalf of the ovnure of the cargo of the Genevieve. 1. The defendants do not admit the truth of the allegations con- tained in paragraphs 4 and 5 of the statement of claim. 2. The defendants do not admit that the sum of ;£10,246 repre- sents the afigr^te amount of £S for each ton of the registered tonnage of the Tabor. 8. The defendants submit that if the plaintiflb establish their right to the relief prayed, they ought not to have such relief save npon the terms of paying to the defendants their costs incurred in the action mentioned in paragraph 6 of the statement of claim, and numbered 1880. O. No. 133. Delivered this day of , 188 , by T. and Co., of solicitors for the defendants. (TiOe.) Reply. The plaintifis join issue upon the statement of defence of the owners of the Oenevieve and the owners of the cargo of the Genevieve respectively. Delivered this day of , 188 , by P. and Co., of solicitors for the plaintiffs. 17. Paraobaph in Statement or Defence in Action of Dakaqe CLAIKING LiHITiiTION OF LIABILITY UNDER 8. 54, M. S. A., 1862. The defendants further say that the matters complained of [if any nich occurred, and if the d^endants are liable for them, whvch they deny on the grounds hereinbefore stated] constituted a loss or damage by reason of the improper navigation of the said ship T,, and the defendants say that the same occurred without the actual fault or privity of the defendants, and that the gross tonnage of the said ship amounted to tons and no more, and the defendants claim that they are not liable in any event in respect of the premises to an aggregate amount exceeding £8 per ton of the said tons. [The portion inhradoete rMUt be omitted i/ the improper namgation is admitted.] 18. Claim of Limitation of Liability under M. S. A., 186S, bt Counterclaim. (TitU.) Statement of Defetice and Counterclaim. 1. The defendantM in the said original action admit the statements 508 APPENDIX. limita- contained iD the statement of daim, and that the aaid aJliaton tion of occasioned by improper navigation of the said steamahip or TeaBel C^ liaMlity. ^jid by way of counterclaim the said defendants Ray as follows : — 2. The said defendants were before and at the time of the said collision the owners of the said steamship C, which is a duly registered British steamship. 8. On tiie 27th June, 1876, another action, nnmbered , was commenced against the said steamship (7. by the ssid ownen of cargo laden on board the said barque, and in the statement of clami mentioned, to recover damages for the loss of the said cargo in the said collision, and such action has by order of the Conrt been consoli- dated herewith. 4. No other action save as aforesaid has yet been brought against the said defendants or the said steamship C, or her freight in respect of the said collision, but the defendsnts apprehend other daima in respect of a damage to goods, merchandise^ and other things on boazd the said barque T., and also in respect of loss of life and peraonal injury oausea to persons on board of and carried in the aaia barque T. at the time of the said collision. 5. The said coUiuon took place without the actoal &alt oir privity of the said defendants, or either or any of them, and the said defendants submit that they are entitled to the benefit of the provisioiis of the Merchant Shipping Act, 1854, and the Merchant Shipping Acts Amendment Act» 1862, for limiting their liability in respect of the said collision. 6. The gross tonnace of the said steamship (7., withont dednetion on account of the en^me room, is tons. 7. The said defendants are willing, and they hereby offer, to nay in such manner as the Court shall direct the amount to which they are liable in respect of the said collision, regard being had to the groviaions of the Merchant Shipping Act, 1864, and the Merchant hipping Acts Amendment Act, 1862. Ijie said defendants claim : — 1. A declaration that the def endantsarenot answerable in reapeei of loss of life or personal injury caused by the said ooUiaiao, together with loss or damage to ship's boats, goods, mercfaan- dise, or other things to an aggregate amount exceeding £15 for each ton of the gross tonnage of the said steamship C^ without deduction on account of the engine room, nor in respect of loss or damage to ship's goods, merchandise, or other things on board the said barque 7., caused by the aaid collision, to an aggregate amount exceeding £l^ for each ton of the gross tonnage of the said steamship (7., withont deduction on account of the engine room. ' 2. That the said defendants may be at liberty to give bail for such an aggregate amount and for such interest aa the Goort may think fit to award. 3. That upon the filing of the bail bond all further proceedings in the said actions, numbered and respee> tively, may be staved, and the respective plaintifEi in the said actions, and all and every other person and poreons claiming in respect of damage or loss to the said barqoe 71, or to her boats, or to any goods, merchandlise or other PRECEDENTS OF PLEADINGS. 509 things on board her, or in respect of loss of life or personal Llnita- injury occasioned by the said collision, may be restrained |,^?H.^ from bringing any other action or actions in respect of these ***™**^ said losses or injuries. 4. That all proper directions may be given by the Court for ascertaining the persons who have any just claim in respect of loss or damage to ship's goods, merchandise, and other things caused by the said colliBion, and in respect of loss of life and personal injury caused by the said collision, and for the exclusion of any claimants who shall not come in within a certain time to be fixed for that purpose. 5. That the amount of the said defendants' liability may be rateably distributed among the several persons who may establidi a claim thereto. 6. Such fiirther and other relief as the nature of the case may require. 19. Paeaoraph in Statement of Defence in Action of Damage ALLEGING THAT YeSSBL BT WHICH DAMAGE WAS DONE WAS IN CHARGE OF A DULY LICENSED PiLOT. The defendants (further) say that at the time of the alleged colli- sion between the said ships A. and B., the A. was (as hereinbefore mentioned) by compulsion of law in charge of a pOot duly licensed for the distiict in which the said ship was at the time of the said colUsion in the act of beins navigated, and that the damage proceeded for [if caused by the negligent nomgation of the ehip A., which the defendants det^y on the grounds hereinbefore stated] was caused solely by the negligence of the said pilot who was in sole charge of the said ship, and not by any default, negligence, or want of proper care on the part of the A,, her owners, master or crew, and that the defendants are not liable for the said alleged damage. [If Hie negli- gence of the pUot is alone relied upon^ the portion in brackets must he omitted.] 20. Paragraph in Statement of Defence in Action of Salvage alleging an inequitable agreement. (TUIe.) [State the material facts and conclude as follows : — ] 7. The said sum of £ was not a reasonable amount for the services to be rendered by the T,, but was an exorbitantly excessive amount for such services, and the master of the T. in procuring the master of the M, (the salved ship) to sign the said agreement, took undue advantage of the position in which the master of the M, was placed ; and the defendants further say that the master of the M. had not any authority to enter into the said agreement on behalf of the defendants^ and that the said agreement was extorted and improperly 510 APPENDIX. obtained from the master of the Af., and ia wholly unjust and inequit- able, and is not binding on the defendants. 8. The defendants are ready and willing to pay to the pUintiffii such reasonable amount for their services as the Court may think just. [A reasonable mm should he tendered by the defendanU to the plaintifs in such a eoAe.] 21. Pbtition on Protkot. {Title as in ordinary Actions.) Petition A. and B.y the solicitois for the defendants, say as follows : — on protest L The plaintiff and the defendants are subjects of bis Majesty the King of Qreece, and are resident within the Kingdom of Greece 2. The defendants are the owners of the ship or vessel Evangelittrioj which is a Greek vessel belonging to the port of Syra, in Greeee. 8. On or about the 4th of October, 1874, at Syra aforesaid, by a certain agreement or instrument of mortgage which was made at Syra aforesaid, the said vessel was mortgaged by the defendants to the plain- tiff to secure repayment to the pkmtiff of the sum of 54,450 dracnmas, together with interest at the rate specified in the said agreement. 4L The said sim:!, as will appear in reference to the said agreement, was advanced, as to one third thereof, for a period of two years from the date of the said agreement, and it was a further condition of the said agreement that even in case of default in payment of either interest or principal, the aaid ship should be brought bv the plaintiff to Syra, to be there sold or otherwise dealt with. No defi&ult has been made in payment of interest pursuant to the said agreement, and no part of the said principal sum is due and payable. 6. The Evangelistria lately arrived at the port of Swansea, laden with a cargo of grain from lAgos, and is now lying at the said port of Swansea. 6. On or about the 10th day of May, 1876, the Eiwnffelistria was arrested in a suit for necessaries, instituted in this Honourable Court by one John Fetters. 7. The said necessaries, in respect of which the said suit was instituted, were supplied to the Evangelistria at Syra aforesaid whilst the said ship was building there. On her completion she was rois- tered as a Gfreek ship, and has since continuea so registered. The present plaintiff appeared under protest in the said suit^ and has since nled a petition on protest, praying the Court to pronounce against its jurisdiction, on the ground that the claim of the plaintiff in that suit is not a claim for necessaries within the meaning of 3 & 4 Vict a 65, s. 6, or 24 Vict c. 10, s. 5. 8. The present suit was commenced by writ dated the 17th of May, 1876, after the said ship had been arrested in the said suit lor necessaries. The endorsement on the said writ is in the words and figuKs following : — ''The plaintiff claims to be the sole owner or mortgagee of the ship EvangelistriOf of the port of Syra, in Greece, and to be entitled to PRECEDENTS OF PLEADINGS. 511 have pooBefision of the said ship decreed to him, or to have the said Petltioii ship sold for the repayment of Tarious sums of money now due and o^^P">teit. owinffto the plaintiff, and the plaintiff claims j£3500.* 0. This Honourable Court has no jurisdiction to entertain the said cause of necessaries, and by reason thereof the said arrest of the EvangeUsiria is, under the circumstances stated in this petition, irregular and void, and the defendants submit that the said proceed- ings in the said cause of necessaries beins null and void, and by reason of the circumstances aforesaid, this Honourable Court has no jurisdiction to entertain this suit. The defendants therefore pray this Honourable Court : — 1. To pronounce a^nst the jurisdiction of this Honourable Court, and to dismiss this suit with damages and costs. 2. To grant such further or other relief as the nature of the case may require. Answer to the Petition on Protest, C, and D., the solicitors for the plaintiff, say as follows : — 1. The plaintiff admits the truth of the first paragraph of the said petition. 8. The plaintiff denies the truth of the second paragraph of the said petition. 8. By an agreement or deed of sale, dated the 21st day of Sep- tember, 1874, and duly made at Syra, in the Kingdom of Greece, before a notary public, with all the formalities requu'ed by the law of Greece, and numbered 15,742, the defendants being owners of the Evtrngeligtria^ sold to the plaintiff the Evcmgdiatna and delivered to him the possession thereof for the price of 64,450 drachmas of Government tariff (Greek) paid to them by the plaintiff. 4. The said agreement was valid and effectual according to the law of Greece to pass the property, ownership, and right of possession of- the said ship to the plaintiff, in whom such property and owner- ship and right of possession have been ever since and are now vested. 6. Such ^e to the plaintiff was duly registered on the 23rd day of September, 1874, at the port of Syra aforesaid, by the proper authorities, and the plaintiff thereupon became, and has ever since been, and still is the sole registered owner of the said ship. 6. On the 4th day of October, 1874, an agreement (being the agreement mentioned in the fourth paragraph of the said petition) was entered into between the plaintiff and the defendants. Such agreement was and is in the Greek language, and the following is a correct translation thereof \agreement set out] 7. In pursuance of the said agreement the Evafigelistria proceeded upon several voyages in the chuge of and under the command of the defendants, or of one or other of them. 8. Before Uie Evangelistria could leave the Kingdom of Greece to proceed on such voyages, the plaintiff was compelled by the law of Ureece to give, and he did before she left the jBliij^dom of Greece give, wiUi the knowledge of the defendants, a bond to the proper authorities in two-thirds of the value of the Evangelistria, conditionerc&cip0 for »u5fMKna and attendance ... 0 6 8 Paid stamp thereon 0 10 Writing agent at Yarmouth therewith 0 3 6 May 28th. Atteudin£[ consultation „ 0 13 4 Attending hearing, when the judge, after hearing evidence and counsel, pronounced for the tender witn costs ... ... ... ... ... ... o 3 0 Paid interpreter 4 4 0 Perusing letter from agent at Liverpool relative to payment to master and other witnesses, writing in i^piy ... ... ... ••• ... ... ... vi wD Drawing bill of costs from tender 10 0 Paying outports 0 6 8 Perusing and copy agenfs charges ... 013 4 Attending adverse solicitors with costs 0 2 6 Attending filing costs 0 3 4 BILLS OF COSTS. 521 Attending taxation Paid stamp thereon Attending agreeing amount of taxed ooets Attending receiving same Attending obtaining decree Paid stamp thereon CopY and service Paid fee on examination of witnesses ... X ci ui lee .at ••. ... •*. »•• Outport charges. Lower Scale. £ «. d. 0 16 8 1 15 6 0 6 8 0 6 8 0 6 8 0 10 0 0 6 8 0 12 0 0 15 0 liower Scale. A «. d. 0 6 8 0 6 8 0 5 0 0 % 6 ^ Fork C. The Emerald, (Plaintiffs' costs in an ordinal^ action for damage bj collision, with numerous interlocutory proceedings.) 1876. June 16th. Instructions to sue Writ of summons Paid stamp thereon Endorsement of claim Writing Mr. B., f4^ent for owners of Emerald , inform- ing him of action which had been entered affainst the Sireamletf and requiring him to appear and give bail to action without expense of an arrest ... 0 3 6 30th. Writing Mr. B., requiring him to arrange for appearance and bail to be given to action at once, as I was instructed to proceed July 3rd. Making copy wnt for service, extra length Attending aaverse solicitors therewith, and ol>taining their undertaking to appear Attending adverse solicitors, when they served me with note of appearance, and perusing same 11th. Attending adverse solicitors, when they served me with notice of bail having been given by com- mission, and perusing same Attending mikking inquiries as to the sufficiency of the propoeed sureties Afterwaras attending searching as to due execution of bail bond, and paid search 14th. Instructions to defend counterclaim Preparing prcecipe for commission to take bail, and attending in the registry filing same Paid stamp on ... ••• ... ••• ••• ••• Paid for oommissioner under seal, and executing . . Writing client therewith and thereon for execution... 0 0 3 3 6 0 0 6 8 0 3 4 0 3 4 0 6 8 0 0 7 6 8 8 0 0 2 0 6 6 0 3 6 0 2 6 522 APPENDIX. Lower Scale. £ 9. d. Attending adverse solicitors, when they served me with copy summons to direct me to give bail to answer connterclaim, and perusing same 0 18 18th. Attend inff summons ; order made for plaintifib to give bail to answer defendants' counterclaim within three days 0 6 8 25th. Attending Mr. L. before a commissioner on his siniing bau bond 0 6 8 Faia commissioner for executing bail papers, one surety ••• ••« .•• ••■ ••• ••• *•• x xu Drawing and engrossing, notice of bail having been given by commissioner 0 16 Attending adverse solicitors, serving them therewith 0 2 6 Drawing and engrossing affidavit as to service of notice of bail ^ 0 6 6 Attending to be sworn thereto, and paid oath ... 0 8 2 Attending on the registry filing bail papers 0 6 8 Paid stamps thereon 0 8 0 October. Attending retaining Mr. C 0 34 Paid his fee and clerk 13 6 Instructions for drawing and engrossing Preliminary ^LCw ... ... ... ••• ... ... ... \lvO Instructions for statement of claim 013 4 Drawing same 0 10 0 Attending Mr. 0. with copy of statement of claim, and feemg him to peruse and settle same 0 6 8 Paid his fee and clerk's ... 2 4 6 Attending counsel on conference on his finally settling statement of claim — 0 6 8 Copy statement of claim for printer ... 0 3 4 Examining proof sheet of statement of claim 0 1 6 Paid printers account 17 6 Attending in the registry, searching if defendants' Preliminarv Act filed, found it was not» and filing plaintiffs' Preliminary Act 0 6 8 Paid searching 0 10 Paid stamp on Preliminary Act 0 50 Notice to adverse solicitors that I had filed Pre- liminary Act, and requiring them to file their Pre- liminary Act at once, and service 0 40 Summons to direct the defendants to file their Pre- liminary Act ; pleadings to be delivered notwith- standing the vacation ^ 0 3 8 Paid stamp on summons 0 2 0 Copy summons to file 0 2 0 Copy and service of summons on adverse solici- vvXo ... ... ••« ... ,,, ... ,,, \^ oO 11th. Attending summons ; order made for Preliminary Act to be filed in ten days 0 6 8 Paid for order 0 3 0 Copy and service of order on adverse solicitors ... 0 3 6 BILLS OF COSTS. 523 24th. Defendants having filed their Preliminary Act, making copy statement of claim to deliver 3l8t. Attending delivering same Attending adverse solicitors, when they served me with copy summons to direct plaintiffs to furnish particuLauTB of claim, and perusing same Sittings fee Lower Scale. £ 9. d. 0 0 1 3 0 1 0 15 6 4 8 0 Michaelmas SUtifiigs. Nov. Ist Attending summons for particulars of claim ; order made for same to be delivered within a weeiL ••• ••• ■•• ••• ••• ••• ••■ \f o o 9tlL Drawing and engrossing particulars of plaintiff' Claim ••• ■■■ ••• ••• •■• ■•■ •■• \j if \} Attending adverse solicitors, serving them there- WXvIl ••• ••• ••• ••• ••• «■« ■«• \J 3S O 11th. Summons to direct an early day to be appointed for hearing of cause as plaXntLffs were aetaining w 1 linesseB ••• ••• ••• ••• ••• ••• \j fS yj Paid stamp on summons 0 2 0 Copy summons to file 0 2 0 Copy and service of summons on adverse solicitors... 0 3 6 14th. Attending summons for day for hearing ; same adjourned till Friday ... 0 6 8 Writing client as to an offer made by defendants ... 0 3 6 16th. Having received instructions from client, writing adverse solicitors refusing offer, saying that my client was incurriua expenses of over j£10 per week on account of detention of witnesses ... 0 3 6 17th. Attending adjourned summons before registrar ; order made for cause to be heard on the 29th insuinii ... ... ••• ... ... Paid for order ... ... ... ... ... Copy and service of order on adverse solicitors Smpoma ad test Paid stamp ... ... ... ... ... Copy and service of same on R Writing client informing him of the day appointed for hearing of cause, and requiring him to arrange for the attendance of witnesses 0 3 6 21st. Attending adverse solicitors, when they waited upon me and stated that, owing to the absence of their witnesses, they could not have cause heard on the 29th instant, and writing me to consent to a postponement of hearing, conferring thereon, when 1 informed them that I could not consent to any postponement as I was detaining witnesses at great expense, when they were to apply to the x/Ourx •*• .•• ••. *■> »•■ «*• «•• u o o 0 6 8 0 3 0 0 3 6 0 6 8 6 2 6 0 6 8 524 APPENDIX. Lower Scale 22iid. Attending adrene solidiora, when tiiey me with oopj sommoBB to direct hearing of cause to be postponed, and to allow them further time for delivering statement of defence, and per- using flame ••• ... ••• ••. ... ... 0 18 Perusing affidartt in support 0 3 4 24th. Attending summons; order made postpcming cause imtil a day to be arranged ; defendants also allowed three days further time for delivering statement of defenoe ' 0 6 8 Preparing telegram to client, informing him of post- ponement of hearing, and requiring him to stop attendance of witneBses ; afteiwards attending and dispatching same and paid 0 7 8 Attending adverse solicitors in the registry, when the hearing of cause was appointed for the 15th pros. 0 6 8 Writing client informing him thereof 0 2 6 Attending R. with notice of postponement of action, and armoging for him to attend bearing on his subpcena on we 15th pros., without expense of frwh nubpcena 0 6 8 27th. Summons to direct defendAuts to file affidavit of documents ... •.. ••• ••• ... ... 0 2 0 Paid stamp on summons 0 i 0 Copy summons to file 0 S 0 Copy and service of summons on adverse aolieitor ... 0 3 6 28th. Attending adverse solicitors, when they served me with copy summons to direct me to file affi- davit of documents, and perusinf^ same 0 18 Dec. 1st. Attending summons for discovery of docu- ments ; order made for affidavit to be filed within a weeK... ••• ••• ••• ••• ••• ••• v v o Paid for order ••• ••• ... ... ... ••• 0 3 0 Copy and service of order on adverse solicitors ... 0 3 6 Attending defendants' summons for discovery ; order made for affidavit to be filed in a week 0 6 8 3nL Attending adverse solicitors, when they served me with printed Qopy pf statement of defence, and perusing same 0 6 8 Attending adverse solicitors, bespeaking and after- wards obtaining further copies of statement of oeience *•« ••• ••* •.• ■*• ^p* v ^ ^ Paid for same • 0 4 2 Instructions for affidavit of documents 0 6 8 Drawing affidavit 14 0 Eu^flsuigsame 0 8 0 Writing client^ enclosing affidi^t to be sworn ... 0 3 6 Agents att^oding clients to be sworn to affidavit^ and paid oath ••• ••• ••• •>> ••• •— 0 8 « Instructions for reply in answer todefendante' counter* claim ,,, •». •«, ••• ••• ••• ... 0 13 4 BILLS OF COSTS. 525 Drawing reply ... ... ,,. Attending Mr. 0. with copy reply, and feeing him to sebtie same ... ..• ... ••• ••• .,, Paid his fee and clerk ... Copy reply to deliver Attending adverse solicitors, delivering same Attending adverse solicitors, bespeakmff and after- wards obtaining copy of defendants* rreliminaiy Act for the printer Pemsing and considering same Copy plaintiffs' Preliminary Act for the printer ... The like reply Attending adverse solicitors, and in the registry ex- aming proof sheet of Prelixninary Acts Paid stamps ... ... ... ... ... ... Paid printer's account Copy reply and Preliminary Acts for delivery Attending delivering same Two copies Preliminary Acts, and reply for the vOlXi'u ... •.• ... ... ••. ••• ... The like statement of claim The like statement of defence Attending depositing pleadings in Goiirt Attending setting cause down xaiQ stamps *•• ... ■•> ... ••• ••• Preparing profdpe for Trinity masters, and attending in the registry filing same Paid stamp on jDftse^ Drawing and engrossing notice of trial Attendinff adverse solicitors therewith 8th. Attending advei'se solicitors, and arranging for a mutual inspection of documents on lx>th sides without an application to the Court 0 6 8 0th. Having received letter from adverse solicitors requiring a further postponement of hearing, attending them in conseouence thereon, informing them I was detainin|^ witnesses at great expense, and could not, thererore, consent to any postpone- ment, and they were to apply to the Court thereon 11 necessary ... •■• ••• *•» ••• ... 11th. Drawing and engrossing notice to produce Attending luiverse solicitors, servine them therewith 12th. Attending adverse solicitors, wnen they served me with copy summons to mi*ect the hearing of cause to be further postponed, and perusing same Idth. Attending summons ; order made for hearing of cause to be postponed until the 19th instant Preparing telegram to client, informing him of the date appointed for hearing of cause, and advising as to tne attendance of witnesses ; afterwards at- tending despatching telegram, and paid 0 7 8 Lower Scale. £ «. d. 0 5 0 0 3 4 1 3 6 0 1 0 0 3 4 0 4 0 0 3 4 0 3 6 0 1 0 0 3 4 0 1 6 1 1 0 0 1 8 0 2 6 0 3 4 0 3 0 0 3 0 0 3 4 0 6 8 1 0 0 0 6 8 0 10 0 0 3 4 0 2 6 0 6 8 0 5 0 0 2 6 0 1 0 0 6 8 62G APPENDIX. AttendiDg one of the witnesses in oonseqnenoe, and arrangiug for him to stay in London ontii trial ... Like attendance on Captain J. Pemsing notice to produce Attending adverse solicitors, when they handed me certified copy of statement of master of the Streamlet before receiver of wreck, and inspecting and admit- vsHk ••• •«• ••• ••• ••• •*• ••• 15th. Notice to adverse solicitors that I was ready to exchange affidavits of documents, and service ... Copy pUintitrs* affidavit of documents for adverse BOIICImOEb ... ••• ■.• ••. ••. ... Attending in the registry filing original Paid stamp thereon Attending adverse solicitors exchanging copy affi- UuVlU) ••. •■• ••. •«* ... ... ... Perusing and considering defendants* affidavit of ciociLiii.eii«tf ••• ••■ •*. ••• ■*. f** Attending adverse solicitors, giving them an inspec- tiou of log-book and other documents of Streamlet Attending adverse solicitors, inspecting documents of EfMraldy and bespeaking copies Paid for same •.. 18th. Attending retaining Mr. M., Q.C. Paid his fee and clerk Instructions for brief, attendances on witnesses, &a Drawing brief ••• ... ••• ••• Copy for Mr. M.,Q.C., including documents, QOfos.... Copy for Mr. C. Two copies plaintiffs' notice to produce, to annex ... The like defendants' notice to produce Tm'o copies statements before receiver of wreck, for counsel ■•• ••• ••• •• ..• ... Two copies for counsel Two copies plaintiffs* affidavit of documents for counsel •*• ■•• ..• ••• ... ... The like defendants' affidavits Two copies statement of claim for counsel Two copies statement of defence Two copies Preliminary Acts Two copies do., reply Attending Mr. M., Q.C., with brief and papers, and feeing him for the hearing X^aiQ OlB IBO ••• ••. ■*• ••• ••• ... Paid his clerk ... Attending Mr. C. with brief and papers, and feeing him for the hearing ... ... ... ... &aiQ niB xeo ... ... •.. ••. ••• ... X aici niB cierK •■• •■ ... ... ... ... Attending Mr. M., Q.C., and feeing him for consulta- vftOU ... *•■• ••• •*• •*• ••• ••• \3 D^ Lower dLrtk £ L < { 0 6 8 0 € 8 0 6 8 0 6 8 0 4 0 0 8 0 0 3 4 0 2 5 0 2 6 0 3 4 0 6 8 0 6 8 0 6 0 0 3 4 1 3 6 6 6 0 3 15 0 1 10 0 1 10 0 0 4 0 0 4 0 0 16 0 0 9 4 0 13 4 0 16 0 0 3 0 0 3 0 0 3 4 0 3 4 0 13 4 21 0 0 0 15 0 0 6 8 16 15 0 0 10 0 BILLS OF COSTS. 527 Paid his fee and clerk ... Attending Mr. C, and feeing him for consultation ... Taid his fee and clerk Writing sbortiiand writer to attend hearing Attending cousultatiun with both ooansel Paid for room ... ... ... ... Attending Court all day on heariDg of canse, when the judge found the Ernercdd alone to blame for collision, and condemned her owners in damages and costs, and clerk's attendance with witnesses Paid on production of witnesses Notice to clients of result of hearing ' Attending the witnesses and arranging amount of their expenses, and paying them on account of their detention Attending bespeaking and afterwards obtaining final decree under seal Paid stamp thereon Copy and service of decree on adverse solicitors ... Paid bhorthand writer's account and attendance ... A ttending paying Trinity master's fees Jraici same ... .•« .•* *•,• *•. .•■ oi b vings xee ••* ... ... .•* ••• «•. Hilary Sittings 1877. Feb. 6th. Instructions for claim Drawing claim ... ... ••. ... ••• Engrossing eame Copy for adverse solicitors Perusing and considering report of survey Copy for adverse solicitors Copy for use of cause Perusing and considering accounts and vouchers ... Copy for adverse solicitors Copy for use of cause Attending adverse solicitors, serving them with copy claim and proofs Writing adverse soliciton, informing them that I would not file original claim for a few days, to enable them to ' settle same without reference if possxDie .•• ••• ••• ••• *■* ••• 17th. On receipt of letter from adverse solicitors offering £450 in settlement of claim, and writing clients informing them thereof, and requiring in- strucvions ■•• ... ••• ••. •.. •.• 23rd. Having received letter from clients with instruc- tions, writing adverse solicitors informing them that my clients would be considerable losers even if they received the total amount claimed, but with a view to a settlement offering to accept £475 ... Lower Scale. £ «. d. 2 9 6 0 3 4 1 3 6 0 3 6 0 13 4 0 5 0 3 3 0 1 14 0 0 3 6 0 6 8 0 6 8 0 10 0 0 4 6 2 2 0 0 6 8 8 8 0 0 15 0 0 6 8 0 12 0 0 4 0 0 4 0 0 2 0 0 2 0 0 2 0 1 6 8 1 6 8 1 6 8 0 2 6 0 3 6 0 3 6 0 3 6 528 APPENDIX. Lower fletk. Several attendances on advene fioIicitor% and altt- ttately settling claim for £4b9 and costs 0 13 4 Attending adverse solicitorSy obtaining cheque for agreed damages, and giving receipt and stamp ... 0 6 9 Drawing affidavit of increase 0 18 0 Engrossing same 0 6 0 Attending deponent to be siwom thereto and paid oa vn ••• «■• ••• ••• ■•• ••« •,. u 0 2 Copy affidavit for adverse soliciton 0 6 0 Paid stamp on affidavit 0 2 0 Drawing bill of costs ^ Copy for the registrar > 3 8 0 Copy for adverse solidtors ) Perusing and considering country agent's expenses... 0 18 Copy for the registrar 0 18 Copy for adverse solicitors 0 18 Attending adverse solicitors with bill of costs for taxation ... ... ... ... ... ••• 0 3 4 The like attendance in the regLitry 0 3 4 Attending taxation 10 0 Attending agreeing costs as taxed 0 6 8 Attending adverse solicitors, obtaining cheque for taxed costs, and giving receipt and stamp ... 0 6 9 Sittings fee 0 15 0 Postage ... ... ... ... ... ... ... 0 5 0 Form D. The Egbert. (Plaintiflb' costs in an ordinary action for damage by colliaion.) 1876. Sept. 25th. Instructions to sue Writ of summons ••• ... ... «.. ••• Paid stamp on writ ... ... ..^ ... Endorsement of claim .. . ... ... ... ... Drawing affidavit to lead warrant ... ; Engrossing same ... ... «.. Attending to be sworn thereto, and paid oath Paid filing ... •.. ••• ••• ••• Copy writ for service (extra 6 fos. length) Writing asents at Southampton with writ and copy, ^ instructing them to serve same on the Ethdred > 0 IS 0 Paid agents for service of writ and letter ) 26th. Attending adverse solicitors, when they served me with copy notice of appearance, and perusing same 0 3 4 HighnrSciJe. £ & d. 0 13 4 0 13 4 0 10 0 0 2 6 0 5 0 0 1 6 0 8 2 0 2 0 0 1 4 BILIiS OF COSTS. 629 Attending adveiBe soliciiors, when they waited a|)on me ana explained the importance of obtaining immediate release of the Egheriy and conferring and finally arranging to file consent to release npon receiving their un^iertaking for bail ; after- wards receiving and perusing undertaking 27th. Attending adverse solicitors, when they 8er\'ed me with notice of bail, and perusing same Attending making inquiries as to the sufficiency of the proposed sureties Attending in the registiy, search as to due execu- tion of bail bond, and paid search Oct 3rd. Making copy writ for adverse solicitors at their request (extra length) 9th. Attending adverse solicitors, when they served me with copy summons to direct all proceedings to be stayed until bail in ;£3000 to answer defen- dants' counterclaim and in £300 to answer costs had been given, and peniaing same Writing clients informing them thereof and requir- ing instructions for bail II th. Attendii)g summons, order made for all pro- ceeding? to be stayed until bail in j£2500 to answer counterclaim and £300 to answer costs had been K^^^*' •*• *•• ••• ••• •• ••• ••• 23rd. Instructions to defend counterclaim Preparing vrcRcvpe for notice of bail and attending the marshal therewith filing same P&id stamp on jTT^scipe ... Copy notice of bail for adverse solicitors and attend- infi^ serving them therewith Paid for marshal's report as to the sufficiency of the proposed sureties Preparing prcecipe for bail bond and attending in the registry, filing same ... ... ... ... ... Ccuu 8 «amp ... ... ... ... ••• *•• Paid stamp on bail bond Attending the sureties in the registry when they signed bail bond Attending filing bail bond Paid stamp ... ... ... ... ... ... Attending retaining Mr. C Paid his fee and clerk's Drawing and engrossing Preliminary Act Instructions for statero ent of clai m Drawing statement of claim Attending; Mr. C. with copy statement of claim and feeing him to peruse and settle same Paid his fee and clerk's Attending counsel in conference on his finally settling statement of claim ... *.. ••• ••• Higher Scale. £ 9. d. 0 6 8 0 6 8 0 3 4 0 7 8 0 4 0 0 I 8 0 3 6 0 6 0 13 8 4 0 6 0 5 8 0 0 6 8 0 10 0 0 6 0 6 0 7 8 0 6 0 6 0 6 0 2 0 6 1 3 0 6 2 2 1 1 8 8 0 8 6 8 0 0 0 6 2 4 8 6 0 6 8 MM 530 APPENDIX. HlglMTtala Cop7 ttaleiDent of daim for the printer 0 3 0 Kiftmining proof-aheeta of gUtement of daim ... 0 16 F^d printer's aooount 0 14 0 Copy atatement of daim for adverae aolidtois ... 0 S3 Attending deUvering aaiuA 0 6 8 Attending filing plaintifib' Preliminary Act 0 6 8 Paid stamp thereon 0 5 0 Sittinga fee 0 15 0 MieKadnuu Sittingt, Attending adverae solicitors, when they aenred me with copy atatement of defence and coonterdaim, and pemaing same 0 13 4 Attendmff adyerae aolidtora beapeaking, and after- wardaobtainingyfnrtheroopiea atatement of defence 0 4 0 Paid for same Q Z ^ Attending adverae aolidtora in conference, informing them that I waa detaining witnesaea on ahore at a great expense, and ahomd have to do so until canae waa heard, and writing them to conaent to an early day being appointed for hearing of canae, when they were to obtain inatmotionB 0 6 8 6th. Snmmona to direct defendants to file affidayit of Qiaooyexy ••■ ••• ••• ••« ... ... Paid atamp on snmmona Copy aummons to file ... Copy and seryice of snmmona on adyerae solicitors Instructions for reply in answer to defendants* counterclaim ... ... ... ... Drawing reply ... ... ... ... Attending Mr. C. with copy reply, and feeing him to pemae and settle same Paid hia fee aod clerk'a Copy reply for the printer Ezamimng proof-flheet of reply Copy reply to deliyer Attending deliyering aame Perusing and considering Preliminary Act Copy plaintifb' Preliminary Act for printer Attending printer with copies Preliminary Acta, and instmctinff him to furnish proof-sheet of same ... Notice to adyerae aolidtora uf appointment to ex- amine Prdiminaiy Acts and aeryice Attending adverse soiidtors in the regiatry, ex- amining proof-sheet of Preliminary Acts X aid isuauipB ... a*. ... ... ... ... Paid printer's account Two copies Preliminaiy Acts for the Court The like statement of claim The like statement of defence The like reply .., •«« «»t ••? t»t •»• 0 6 8 0 3 0 0 2 0 0 4 6 1 1 <» 0 10 0 0 6 ? 1 3 6 0 I 1* 0 0 6 0 1 0 0 6 8 0 3 4 0 3 6 0 3 4 0 4 ^ 0 6 S 0 I 6 1 1 0 0 4 6 0 4 6 0 4 0 0 I 6 BILLS OF CX)STS« 631 Attending depositing printed pleadings in Court .. Attending setting down canae Paid stamp Preparing prcBcipe for Trinity masters, and attend ing in the registry filing same Paid stamp Drawing and eugrossinff Dotice of trial Attending adverse soUcitora serving them therewith Sth. Summons to direct an early day to be appointed for hearing of action Paid stamp on summons ... ... Copy summons to file ... Copy and service of summons on adverse solicitors Attending adverse solicitors, when they served me with copy summons to direct plaintifira to file affi- davit of discovery aod perusiug same 10th. Attending plaintiHV summons for discovery, order made for affidavit to be filed within a week Paid for order ... ... ... ... ... ... Copy and service of summons on adverse solicitors Attending defendants' summons for discovery, order made for affidavit to be filed within a week Attending summons for day for hearing of cause, orQor macie ... ••• ... •■• ... ••• Paid for order ... ... ... ... ... ... Writing clients informing them of order made on summons, and reauiring them to let me have in- structions for affidavit of documents ... Attending adverse solicitors in the registry, when the hearing of cause was fixed for the 30th instant ... Attending the translator with documents, and in- structing him to translate same Paid translator ... ... ... 16th. Attending adverse solicitors, when thev served me with note to produce documents at the hear- ing, and perusing same ... ... ... ••• Instructions for affidavit of C. Q. as to documents ... Drawing affidavit ••• ... •«. Engrossmg affidavit ... Attt>ndinff deponent to be sworn thereto, and paid oaUi Copy affidavit for adverse solicitors Attending in the registry filing originals X luu iev3 ..• ... ... ... ... ... ... Notice to adverse solicitors that I was ready to ex- change affidavits of documents and service Perusing defendants' affidavit of discovery 1 7th. Writing clients re. ••• ... 28th. Adverse solicitors having refused to accept deposi- tions before consul unless further aflaaavit of documents filed, instructions for further affidavit accordingly •• ... ••• ... ... >•• Drawing aiQaavit ••• ••• ••• ••• Engrossing same •• ••• ••• Attending deponent to be sworn thereto, and paid Ow wU ..• ••• •.■ ••• ••• ••• ••• Copy affidavit for adverse solicitors Attending serving them therewith Paid stamp on original... Attending at the London Bridge regtstiy, arranging for an official to attend in Court and produce official log book of Egbert without expense of a BUDpOBDA ••• ••• ••. ••• ••• ... Paid conduct money to official Attending arranging for the attendance of an in- lerpre vcr .*« .*. •.« ..• ... •*■ Attending retaining Mr. B., Q.C Pud his fee and clerk's Instructions for brief Drawing brief ... ••• ... ••• ... ••• Copy for Mr. B., Q.C. •>. ... ... ... ... Copy for Mr. C. Two .copies, plaintifis' notice to produce to annes ... The like defendants' do. The like defendants' further do Two copies documents referred to in pUuntifis' affi- davit of documents for counsel Two copies depositions before consul at Southampton for counsel ... ... ... Two copies plaintifis* affidavits of documents for vuuiiBei ... ... ... .«• •• •.• The like defendants' do. Two copies note of protest of Stockholm for counsel.,. 0 6 8 0 8 0 , 1 0 6 8 0 7 6 0 2 6 0 3 6 0 6 S 0 6 0 0 S 0 0 8 i 0 i 0 0 2 6 0 2 0 0 6 ^ 1 I ^ 0 6 S 0 6 ^ 1 3 6 6 6 I' 5 0 0 1 13 4 1 13 4 0 4 0 0 4 0 0 4 0 1 18 P 0 5 4 0 9 4 0 8 0 0 2 ? Higher Bade. & «. d. 0 16 0 0 6 4 0 4 6 0 4 0 0 1 6 0 4 6 1 1 0 21 0 0 0 15 0 0 13 4 15 15 0 0 10 0 0 6 8 2 9 6 0 6 8 1 3 6 0 3 6 0 13 4 0 5 0 BILLS OF COSTS. 533 Two copies extracts firam log book, &&, of Eghwi lO* CO U]la61 ■•• ••• •■• ••• ••• »(» Two copies correspondence for counsel Two copies statement of claim for counsel The like defence The like reply The like Prefiminary Acts Attending Mr. B., Q.C., with brief and papers, and feeing him for the hearing It aid nis tee ... ••• ... .,. ... ... Paid his clerk Attending Mr. C. with brief and papers, and feeing him for the hearing ^aiQ nis ice ... ... ••• ••• ••• ... Paid his clerk 'Attending Mr. B., Q.C., and feeing him for consul- ^AUUU ... .a. ... ..« ... .,, ,,a Paid his fee and clerk Attendiuff Mr. C, and feeing him for consultation ... Paid his fee and derk Writing shorthand writer to attend hearing 30th. Attending consultation with both counsel Paid for room ... Attending Court all day on hearing of action, when, after hearing eyidenoe and arguments of counsel on both sides, Court pronouno^ the Egbert solely to blame for collision, and condemned her owners in damages and costs... Clerk's attendance with witnesses ... * Paid stamps on production of witnesses Attending paying Trinity master's fees jraici Bame ... ... .•• *•• ••• .«. Paid shorthand writer's account Paid interpreter's account and attendance P^d for €nal decree under seal v/OUjr x\/s oor* I vC ■•• ••• ••• ••• ■•»• ••• Service thereof ... Dec. 4th. Instructions for aflSdavit of A. B. in support of claim for lost effects ... Drawing afiSdavit Eingrossing same ... ... ... ... Attending deponent to be sworn thereto, and paid oath and exhibits Instructions for affidavit of C. D. as to the loss of uin enecuB ... ... .«. ... ••• .•> Ihrawing affidavit ... Engrossing same Attending deponent to be sworn thereto Paid oath, and two exhibits Instructions for affidavit of E. F. as to the loss of his effects ... ... ... ... ... ••• 0 o 8 2 2 0 1 1 0 1 15 0 0 6 8 8 8 0 2 8 0 4 4 0 1 0 0 0 2 0 0 2 6 0 6 8 0 9 0 0 3 0 0 11 8 0 6 8 0 9 0 0 3 0 0 6 8 0 5 0 534 APPENDIX. HSgborScile. £ «L t'. 0 Drawing affidavit 0 9 £Dgro88i]ig samo ... ... ... ... ... 0 3 0 Attending deponent before a oommiaaioner ou his being sworn to affidavit 0 6 6 Paid oath, two exhibits and inteipreter 0 6 0 FOEM £. The John Wells and The Lordey. (Ckwts of a consolidated action, defendants in first action being plaintiffii in the second action. Bill of costs on behalf of the ownen of The John Wells, 1875, G. No. 27, The Loreley.) LoreleyfLowet Scale. John neUsj Higher Scale. 1876. Not. 12th. InstructionB to sae Drawing affidavit to lead writ £ngro8Sing same ... ... ... ... ... Attending to be sworn thereto, and paid oath Writ of summons ... ... Paid stamp on writ ... indorsement of claim ... ... ... ... ... Paid stamp on affidavit... Copy writ for service ... Attending the martial with writ and copy, and in- structing him as to service thereof Paid marshal a fee ... ... ... ... Preparing telegram to collector, requiring him to detain the Loreley until arrival of writ, and attend- ing the marahal obtaining his signature and seal thereto ; afterwards attenmng dispatching telegram and paid ... ... ... ... ... ... 0 4 4 Attending the marshal obtaining and filing warrant execute, and perusing certificate of service ... 0 6 8 Paid stamp on writ 0 2 0 13th. Attending adveise solidtors, when they served me with notice of appearance, and perusing same ... 0 3 4 Attending adverse solicitors, when they waited upon me and explained the importance of obtaining the release of The Lordey^ and conferring with them thereon, when I arranged to consent to release upon receiving their undertaking for bail ; afterwuda attending, receiving, and perusing undertaking ... 0 6 8 Attending m the registry filing consent to release ... 0 3 4 Paid stamp thereon 0 5 0 15th. Attending adverse solicitors, when they served me with notice of bail, and perusing same 0 3 4 0 6 8 0 6 0 0 2 0 0 8 3 0 6 8 0 6 U 0 2 6 0 2 0 0 2 0 0 6 8 2 0 0 Lower Soala. £ «. ct 0 6 8 0 7 8 0 3 0 0 2 0 0 2 0 0 1 0 0 1 6 0 6 8 0 3 0 0 3 0 0 15 0 BILLS OF COSTS. 535 Attending mftking inqoirieB as to the supply of the proposed sai^eties Attending searching as to due execution of bail bond, and paid search Dec. Summons to direct this action and Tht John WdLs, 1876, 6. No. 27, to be consolidated together Paid stamp on summons Copy summons to file ... ... Gop^r summons for service on adverse solicitors oervico cnereoi ... ..• ... *•. ... 9tb. Attending summons, order made Paid for order ... ... ... ... ... Cop^ and service of order on adverse solicitors Sittmgs fee. ••• 1876, H. No. 26, and Q. No. 27. CoMoHdaUd, 1876, H. No 27. Higher Scale (a). £ c d. Preparing prcecipe for caveat warrant, and attending in the registry filing same 0 6 8 Paid stamp on pn9ci/>0 0 5 0 Attending adverse solicitors, when they served me with copy writ, and giving undertieiking to appear 0 6 8 Instructions to defend 0 13 4 Attending in the registrv, looking up action, taking particulars thereof,,and paid search 0 7 8 Entering appearance ' • 0 6 8 Paid stamp 0 2 0 Copy and service of notice of appearance on adverse solicitors ... ... ... ... ... ... 0 6 8 Preparing prcgcipe for note of bail, and attending the marshal therewith, filing same 06 8 Paid stamp ... ... ... ... ... .. 0 5 0 Copy and service of notice of bail on adverse solicitors 0 6 8 15th. Paid for report as to sufficiency of proposed sureties 0 10 0 Preparing prcecipe for bail bond and attending in the registxy filing same 0 6 8 Paid stamp ... ... ... ... ... ... 0 5 0 Paid stamp on bail bond 0 7 6 Attending the sureties in the registr)', when they signed bail bond ... ... ... ... ... 0 6 8 Attending filing bail bond 0 6 8 Paid stamp thereon 0 2 0 Attending Messrs. S. & Co. , when they served me with notice of appearance in lieu of Messrs L. & H., and perusing same ... ... ... ... ... 0 3 4 Drawing and engrossing Preliminary Act 0 6 8 (a) Action entered in £2000. See anUi p. 360. 53G APPENDIX. Attending in the r^^iatry filing Pidiminarj Act ... 0 6 8 Paid stamp thereon 0 5 0 The like on my own 0 5 0 Notice to adverse solidton that I had filed Ptelimi- nary Act and service 0 4 6 Attending adverse solicitors, when they served me with copy summons to allow them furUier time for delivering statement of chum, and penising same 0 16 Attending summons, order made for statement to be deliveied in a week... 0 6 S 28th Attending adverse 8olicitors,when they served me with copy statement of claim, and perosing same 0 13 4 Attending adverse solicitors bespeaking, and after- wards obtaining, farther copies statement of chum 0 4 0 Paid for same 0 5 1 Attending retaining Mr. C 0 6 8 Paid his fee and clerk's 13 6 Instructions for statement of defence and oounter- t/lcHm ••• ... ••• ..a ... ■•• ■*• X " ^ Drawing statement of defence and counterclaim ... 1 10 Attending Mr. C. with copy statement of claim, and feeing him to peruse and settle same 0 6 6 Paid his fee and clerk 8 4 6 Attending counsel in conference on his finally settling statement of defence '. 0 6 S 1876. Jan. 6th. Summons for further time for delivering state- ment of defence 0 6 S Paid stamp on summons 0 3 0 Copy summons to file 0 8^' Copy and service of summons on adverse solicitors 0 4 6 Attending summons, order made 0 6^ Paid stamp on order 0 3 (^ Copy and service of order on adverse solicitors ... 0 3 6 8th. Copy statem'-nt of defence and counterclaim, for printer 0 3b Examining proof-sheet of statement of defence ... 0 ll^"* Paid printer's account 0 10 t' Copy statement of defence to deliver 0 2 ^ 11th. Attending delivering same 06^ Sittings fee 0 15 l' Hilary Sittings 15th. Attending adverse solicitors, when they served me with copy reply, and perusing same 0 13 ^ Feb. 1st. Having received furtner letter from adverse solicitors requiring to know if I could consent to a day in the following month being appointed for hearing, writing them in reply 0 3 6 BILLS OF COSTS. 687 Higher Boale. 2ncL Haying received inntractiozis, writing adyerae solicitors that I conld consent to an early day in March being appointed for the hearing 0 3 6 drd. Attending adverse solicitors in the registry, when the 13ih proz. was appointed for hearing of cause 0 6 8 Suhpcena ad teii. 0 6 8 Paid stamps ... ... ... ... ... ... 0 5 0 Two copies subpoena for service 0 5 0 Writing clients informing them the date appointed for hearing of cause, and enclosing subpoena and copies for service on independent witnesses, and instructinfi; them thereon 0 3 6 5th. Copy PrelimiDary Act for printer 0 3 6 Attending adverse solicitors therewith to print with pleadings 0 2 6 Attending adverse solicitors in the registry, ex- amining printed copy Preliminary Act 0 6 8 Attending adverse solicitors, when they served me with printed copy Preliminary Act, and perusing PHI lie ••■ ••• ••• ■•• ••■ ••• ••• v/ o ^t Attending adverse solicitors bespeaking, and after- wards obtaining, copies Preliminary Act 0 4 0 Paid for same 0 4 2 16th. Two copies statement of defence for the Court ... 0 5 6 Attending aid verse solicitors therewith, to lodge with printing in Court 0 2 6 Anerwards attending them in conference, and arrang- ing for a mutual inspection of documents on boSi BXUdi ••• ••• ••• •■• ■•• ••« ••• v v O Writing clients requiring them to let me have log hook, of The John Wells ... 'o 3 6 Writing collector at Gk)ole, requiring him to furnish me with certified copy deposition of master of John WeUs and mate of Loreky before receiver of T* Xwvulk ... ... ... ... ... ... ... \J O O Attending adverse solicitors on conference, and arranging for them to admit certified copy state- ments before register of wreck 0 6 8 20th. On receipt of letter fix)m adverse solicitors statins that the LoreUy had sailed to Stettin with sevend important witnesses on board, and requiring to know if I would consent to the hearing Ming post- poned to the end of the following month, making copy of letter, and writing clients therewith for in- structions ... ... ... ... ... ... 0 3 6 Having received instructions from clients to oppose any postponement, attending adverse solicitors in- forming them thereof and conferring thereon, when they stated they should apply to the Court ... 0 3 6 Paid for copy statements made before receiver of ^VavwJk «'• ■ ••• ••• ••• ••• ••■ ••• w Jlw V 538 APPENDIX. iE «. tf. 0 6 8 0 14 0 0 4 8 0 9 2 0 1 4 0 1 4 0 2 6 0 6 8 0 2 0 Attending adverse solidton on their uufpeeting and admitting statements before receiver of wreck made by master and mate of LonUiy^ and I admitted statement of master of JoMi fFe^ 0 6 8 Mar. 2nd. Attending adverse solicitors, when they served M. with copy summons to direct the hearing of cause to be postponed, and perusing same ... 0 18 Instructions for affidavit of J. H. in opposition to summons ... ... ... ... ... ... Drawing affidavit ... ... ••• Engrossing same ... ... ... ... ... Attending deponent to be s^' om thereto, and paid oath 4th. Perusmg and considering exhibit to affidavit of JUCLx • A^i« ••• ••• ••• ••• •*• ••• Copy for use of cause Attending serving them therewith Attending i n the registry filing original Paid stamp thereon ... ■•• ... ... ••• Attending adverse solicitors, when they served me wth copy joint affidavit in support of summons, and perusing same 0 3 4 7th. Attending sunmions before registrar, order made for cause to be postponed, plaintiflb to pay costs of adjournment ... ... ••• ... ... ... 0 6 8 Preparing telegram to clients informing them of result of summons, and attending despatching same, and paid, afterwards writing confirming tel^pram ... ... ... ... ... ... 0 7 11 18th. Attending adverse solicitors in the registry, when the 5th proz. was appointed for the hearing of cmiBo ... ... ... ... ... ... ... Vr o {/ Svbpoena ad Ust, 0 6 8 Paid stamp ... ... .. ... ... ... 0 5 0 Two copies of subpoena for service 0 40 Writing clients informing them of date appointed for hearing of cause, and enclosing subpoena and copies for service on the independent witnesses ... 0 3 6 25th. Drawing and engrossing notice to produce log book, &C., of the Lare/«3/ .. Service thereof ... Attending adverse solicitors, when they served me with notice to produce, and perusing same Attending adverse solicitors, giving them inspection of lo^ book, &c., of the Joha WMs Attendmg adverse solicitors inspecting log book, &a, of LoreiEey, and bespeaking copies Paid for copies 30th. Attending clieuts in conference, and arranging for the att^dance of witnesses without expense of a subpoena April 4tL Attending retaining Mr. M. , Q .C 0 7 6 0 2 6 0 6 8 0 6 8 0 6 8 0 7 0 0 6 8 0 6 8 Higher Scale. A c cK. 1 3 6 12 12 0 6 13 0 2 4 4 2 4 4 0 4 0 0 4 0 BILLS OF COSTS. 589 Paid his fee and clerk's Instructions for brief Drawing brief ... ..• ... Copy for Mr. M., Q.C. Copy for Mr. G Two copies plaintifis' note to produce to annex The like defendants' note Two copies statement before receiver of wreck for counsel ... ... ... ... ... ... 14 0 Two copies extract from log book, &c., of LoreUy for oonnsel ... ... ... ... ... ... 0 14 0 Two copies extract from log book of the John Wells, for counsel Two copies statement of claim for counsel The like statement of defence X ne 11X6 repiy ... ... ... ... ... ... The like mliminary Acts Attending Mr. M., Q.C., with brief and papers, and feeing him for the bearing X cUU UUB AwB ••• ••• ••• •■• ••• •«• AAXP vXwa Jlk ••• ••• ••• ««• ••• ••• Attending Mr. C. with brief and papers, and feeing him for the hearing ... x^nlU IXXB aOO ... ... ... ... ... ... X aiu iiiB cierx ... ... ... ... ... ... Attending Mr. M., Q.O., and feeing him for consul- Ub wLvU ... ... ... ... ... ... ... Paid his fee and clerk Attending Mr. C. and feeing him for consultation ... Paid his roe and clerk 6tb. Attending consultation with both counsel Paid for use of room ... • Attending Court all day on hearing of cause, self and clerk, same part heard and adjourned Attending Mr. M., Q.O., and feeing him for further UwtVflUlf ... ... ... ... ... ... Jl ftlU UlB lUv ... ... ... ... ... ... 1 ftlM XUB (/IcrK ... ... ... ... ••• ... Attending Mr. C, and feeing him for further hearing A^cv«La iHP Iww ••• ••• ••• ••• ••• ■•• 1 ftlu lllB CX6xK ••• ■•• ••• ••• «•• »•• 6th. Attending Court all day, self and clerk, on further hearing of cause, when the judge pronounced the Lordeu to blame for collision and in fiivour of defendants' counter-claim with costs Paid stamps on production of witnesses Notice to clients of result of hearing Attending bespeaking, and afterwards obtaining final decree under seal 0 6 8 Paid for same 10 0 Copy for service on adverse solicitors 0 2 0 0 6 0 6 0 6 0 2 0 4 4 6 6 0 6 1 1 21 0 0 16 0 0 0 0 13 16 16 0 10 4 0 0 0 6 2 9 0 6 1 3 0 13 0 6 8 6 8 6 4 0 3 3 0 0 13 10 10 0 10 0 13 7 7 0 7 4 0 0 4 0 0 CO CO CO coco o 0 0 6 540 APPENDIX. £ t. d. Service thereof ... ... ... ... ... ... 0 8 6 Attending paying Trinity master's fees 0 13 4 Paid same ... ... ... ... ... ... 16 16 0 xenn lee*** ... ... ... ... ... ... u id u 0 6 8 0 8 0 0 6 8 0 5 4 0 6 8 0 8 0 0 a 8 FOBM F. ThA Egbert. (Plaintifis* cost of a reference before the registrar and merchaati after the jndge on the hearing had pronoan^ in favour of the plaintiffs' claim in an action for damage by ooUision. For proceedings up to hearing in this action see Form D.) 1876. Dec. 7th. Instructions for claims Drawing claim ... Instructions for affidavit of C. C. in support of daim Drawing and engrossing affidavit Instructions for affidavit of D. T. in support of claim Drawing affidavit .*. EngrosBinff same Writing clients with affidavit to be sworn, and in- structing them as to same ... 0 3 6 HUary Sittings, 1877. Jan. Instruction for affidavit of Captain B. in support of claim ... ... ... ... ... ... ... 0 6 8 Drawing affidavit 10 0 EngroHsmg same 0 6 8 12th. Attenmnff deponent to be sworn thereto ... 0 6 8 Paid oath and three exhibits 0 4 6 23rd. Engrossing claim 0 2 8 Copy for adverse solicitors 0 2 8 Perusing and considering exhibits to affidavit of v^apxai n jy* ... ... ... •.• ... ... Copy for use of cause Copy affidavit and exhibits for adverse solicitors ... Copy affidavit of N. B. for adverse soUdtoiB The like of L. B. Xne liKe ot %>. O. ... ... ... ... ... The like of J. P. Perusingaud considering exhibits to affidavit of V. X. vT • ... ... ... «•. ... ... Copy for use of cause Copy affidavit and exhibits for adverse solicitors ... Copy affidavit of F. W. for adverse solicitor 0 7 4 0 7 4 0 IS 8 0 1 4 0 1 4 0 1 4 0 2 0 0 2 4 0 2 4 0 5 0 0 3 0 Higher Boald. £ «. £ 0 3 0 0 3 0 0 2 6 0 6 8 1 4 0 BILLS OF COSTS. 641 The like of P. H. The like of O. A. Attending adverse solicitors, serving them with copy claim and proof 8 Attending in the registry filing originals Paid atamns thereon and co|)y 26th. Attenaing adverse solicitors, when they served me with notice to produce bills of sale, original charter party, bills of lading, and all vouchers for repairs clone to the Stockholm since her purchase by W plaintiffs, and perusing same 0 6 8 riting clientsinformingthemof documents required to be produced by defendants, requiring them to let me have same 0 3 6 Feb. Attending adverse solicitors, informing them that the captiun of the Stock/iolm would have to re- main on shore until the reference had been heard, and requiring them therefore to consent to an early day for a reference, when they were to obtain instructions 0 6 8 Attending adverse solicitors, when they served me with copv summons to allow defendants further time for nling counter affidavits, and perusing same 0 18 8th. On receipt of letter from adverse solicitor stating that he would file counter affidavits in a week, and as to the amount alleged to have been paid for the /SRtoc/:^2m, writing in reply 0 3 6 12th. Attending summons, order made for counter affidavits to be filed that day 0 6 8 Attending adverse solicitors, when they served me with two counter affidavits in opposition to claim, and perusing same 0 4 0 Preparing notice to place reference on list for hearing, and attending in the registry filing same Paid stamp on notice and copy Attending adverse solicitors in the registry, when the reference was appointed for the 23rd instant 23rd. Attending long reference before the registrar and merchants ... ... ... ••• ... Attending preparing reference fees X Biu saiuo .*• ... ... .. ... •.■ 24th. Notice of taking up and filing registrar's report, and serving same ... ... ... *•• ••• Attending in the registry filing notice and original iwDOx li« •• ... ... ••• ... ... ... Paid stamp on note ... ... The like on original report and copy Attending bespeaking, and afterwiuda obtaining, copy registrar B report ... ... ••• ... ... Paid for same under seal Perusing and considering report ... ' 0 0 6 11 8 0 0 6 8 4 0 15 4 16 16 0 8 0 0 4 0 0 0 1 6 5 2 8 0 0 0 0 0 6 6 6 8 8 8 542 APPENDIX. • • • El Instractiona not to object to report Attending adverse solidtore calculating and agreeing amount of interest payable Drawing affidavit of increase Engrossing same Attending deponent to be sworn thereto, and paid Om uu ••• ••• ••• •■• •■• «•• ••• Copv affidavit for adverse solicitors Paid stamp on affidavit Drawing bill of costs Copy for registrar Copy for adverse solicitors Perusing and considering agents' ex penses . . . Copy for adverse solicitors Copy for use of cause Attending adverse solicitors with bill of costs for vftzawion •«• ••• ••• ■•• ••• ••• Attending taxation X^cllU BMUUpS *•• ■•• ••• ••• «•• •*■ Attending agreeing costs as taxed Attending adverse solicitors obtaining cheque for damages, interest, and taxed costs, and giving receipt and stamp si vungs lee ••■ ••• ••• ••• ••• ... X osvsges, CEC* ■•• ••• ••■ ••• «•• ■•« £ 4. 0 6 8 0 6 0 8 0 2 8 0 8 0 8 0 2 0 2 2 8 0 3 9 0 0 2 0 2 0 2 8 8 0 2 1 11 7 7 0 6 6 6 0 S 0 8 O 15 0 7 5 0 6 Form G. The Annie Webster, (Defendant's costs of a reference before the registrar after the judge on the hearing had pronounced in favour of defendant's oounter-daim in an action for damages by collision.) 1876. £^rc Aug. 10th. Having received letter from adverse solici- tors stilting that claim must go before the registrar, attending m the registry filing claim 0 6 8 Paid stamps thereon and on copy 0 11 0 Michadmas Sittings, November 6th. Preparing notice to place reference on list for hearing, and attending in the registry filing same ... *•• *•■ ••• «•• ••• ... \j o o Paid stamp ... ... ... ... ... ... 0 10 0 Attending adverse solicitors in the registry, when the reference was appointed for the 17Ui instant ... 0 6 S Notice thereof to clients 0 3 6 BILLS OF COSTS. 543 AttendiDg Mr. A., Bhipbuilder, and arranging for his attenduioe at reference without a aubpcBna The like Mr. B., shipwright The like Mr. C, superintendent at Northumberland graving docks The like Mr. A. , shi pbuilder 11th. On receipt of notice, writing clients that refer- ence had been altered to 16th instant Notice to Mr. A. Notice to Mr. B. Aug. 16th. Attending long reference before registrar and Mil ere 11 Bill wB ... ... ••* ... •.. ... Attending paying reference fees t mil BmIuv ... ... ■«. ••* ... ... Paid stamp on production of witnesses Paid Mr. A. his expenses X u6 iiiLe Jxir. Dm ... .... ... ... ... ... 17th. Drawing and engrossing notice of taking up and filing regfstmr's report Copy for adverse solicitors, and attending serving them therewith Attending in the registry filing notice and original reporb ... ... ... •*• ■*• ... ... Paid stamp on notice ... ... ... ... ... The like on original report and copy AttendiDg besj^aking and afterwards obtaining office copy registrar's report Paid for same under seal, and collating Perusing and considering report Instructions not to object to report Attending adverse solicitors calculating and agreeing amount of interest payable.. . Attending adverse solicitors obtaining cheaue for damages and interest, and giving receipt ana stamp Drawing affidavit of increase Engrossing same Attending deponent to be sworn thereto and paid Oc* vU ... ... .•• .•• ... ... ... Copy affidavit for adverse solicitors Paid stamp thereon ... ... Drawing general bill of costs ^ Copy for Uie registrar ... > Copy for adverse solicitors ) Perusing and considering outport expenses. . . Copy for adverse solicitors Copy for the registrar Att^ding adverse solicitors, serving them with bill of costs for taxation The like attendance in the registry Attending taxation jraici Swamps ... ... ... ... ••• ... Lower Scale. & t. a. 0 3 0 3 6 6 0 3 0 3 6 6 0 3 0 3 0 3 6 6 6 3 3 0 16 15 15 1 2 2 2 1 1 0 8 0 0 0 0 0 3 4 0 3 6 0 6 0 5 1 1 8 0 0 0 6 0 5 0 6 0 6 8 6 8 8 0 6 8 0 6 0 15 0 5 9 0 0 0 8 0 5 0 2 2 0 0 [ 3 10 0 0 3 0 3 0 3 4 4 4 0 2 0 3 1 6 2 16 6 4 8 0 944 APPENDIX. £ I. & Attending agreeing costo as taxed 0 6 6 Attending fuiverse solicitors^ obtaining cheque for taxed costs, and giving receipt and stamp 0 6 9 Sittings fee 0 15 0 Postages, &c 0 7 6 Form H. 27k? Transit, (Bill of Costs in the Court of Appeal) (a). 1876. Higher Bade March 29th. Attending Mr. W. in conference, when he **-«'• informed us that he was determined to appeal, and taking instructions to proceed with the appeal accordingly • Ill) 30th. Attending the shorthand writer for and ob- taining tmnscript of judgment Drawing and engrossing notice of appeal Drawing and engrossing notice of motion to stay pro- ceedings, and reverse judgment of the Court below Copy for adverse solicitors, and attending serving them therewith Attending filing notice of motion and notice of ap- UdU ... ••. ••• ... ••• ... ■•• Paid stamp thereon April 3rd. Drawing case to support motion to stay pro- CCuUllJlfB ... *•«* ••. «•• •«. .•* Copy for counsel Attending Mr. P. therewith, and feeing him to attend Ul \J vX,\3mX ••• •■■ ••• •«■ ••• •«• ••• Paid his fee and clerk 4th. Attending motion in Court, when the judge refused at present to stay execution, but made an order as to the documents to be printed, and ordered our parties to give security for the costs of the AUDCmI ... ... *•. ••* ... «•• ••. Copy order and service on adverse solicitor Paid diorthand writer for transcript of judgment (6) Copy of the judgment for the official reporter of Uie vvOUf V ... ••• ... ... ... ... ..• (a) The party for whom judgment is pronounced in the Court of Appal being generally entitled to be paid his costs in the Court below as well w in the Court of Appeal, the actual bill of costs as taxed after an appeal con- sists of both sets of costs. But it is only necessaiy for the purposes of this precedent to set out so much of the costs as relate to the appeaL (6) This sum must not be regarded as a precedent, it included more t**" the actuiJ judgment, and was ^owed only on account of a special agree- ment between the parties. 0 6 8 0 10 0 0 5 0 0 4 6 0 6 8 0 10 0 0 13 4 0 6 S 0 6 8 2 4 € 0 13 4 0 4 6 15 18 8 0 5 0 BILLS OF COSTS. 545 Attending him therewith, and feeing him to settle judgment Paid nig fee nud clerk 13th. Writing Messrs. S. & Co. as to security for costs 20th. Attending obtaining receivablp order for £200 to be paid into Court as security for costs of appeal Paid stamp thereon Attending at the Bank of England paying in amount of tender and obtaining receipt Drawing and engrossing nntice of payment into ^ 'V C&A V«»a ••■ ••• ••• ••• ••• ■•• Copy notice for adverse solicitors, and attending serving them therewith Attending filing notice of payment and receipt Paid stamps thereon 22ud. Attending the adverse solicitors in conference, going through the papers with them, and agreeing on the documents to be included in the record , Attending filing the evidence Paid stamps thereon 25th. Copy record for the printer Drawing and engrossing index thereto 26th. Correcting proof sheets of record May Ist Perusing and considering the record, and in- stiuctlons K>r brief Attending at the Court of Appeal with copies of record, and setting down appeal Paid fee thereon 3pd. Drawing brief Two copies thereof for counsel Two copies of the record for counsel Attending Mr. B., Q C, with brief, and feeing him for the hearing of the appeal Paid his fee and clerk Attending Mr. P. with brief and feeing him Paid his fee and clerk Attending Mr. B., Q.C., and feeing him for a oon- snltation Paid his fee and clerk The like attendance upon Mr. P Paid his fee and clerk 4th. Attending searching cause list when we found that the Court would not take Admiralty appeals idPter to-morrow, and that the hearing must tnere- fore stand over for a considerable time 16th. Attending consultation with counsel 17th. Attending hearing of appeal, when after hearing counsel the Court adjourned until the following UttjT ••• •■• ••• ••• ••• •■• ■•• Attending Mr. B., Q.C., paying his refresher fee for the further hearing Higher Scale. £ t, d, 0 6 8 2 4 6 0 3 0 0 6 8 • 0 2 6 0 6 8 0 3 4 0 4 0 0 6 8 0 6 0 0 l:\ 4 0 6 8 4 10 0 9 0 0 0 17 0 4 9 6 8 19 0 0 6 8 110 4 4 0 2 16 0 13 8 6 2 2 0 80 12 6 2 2 0 63 15 0 0 6 8 2 9 6 0 6 8 1 3 6 0 6 8 0 13 4 2 2 0 0 13 4 V^ -l 6jtfi APPENDIX. Paid for b&i fee and dork 11 0 (i The like attendance on Mr. P. 0 13 4 Paid bis fee and clerk 7 IT i> 18th. Attending the farther hearing of the appeal when the Court reserved judgment 2 2 o 27th. Attending Mr. B., Q.C., feeing him to attend the judgment ... ... ... ... ... ... 0 6^ Paid hie fee and clerk 2 4 6 The like attendance on, and fee to Mr. P 1 10 29th. Attending Court when the Glannibanta was pro- nounced solely to blame for the collision, and the decision of the Court below was reversed, and the respondents were condemned in damages and in costs in both Courts Term fee,- letters, &c. June 3rd. Attending in the registry, bespeaking and obtaining decree Paid for same Copy for adverse solicitors Attending serving them therewith July 18ih. Paid account received fh>m Measia. H., of Bamsgate, for securing the attendance of Man- thorpe, serving him with subpoena, and providing a substitute for him during his absence, and their c ii mrif "P •*• •.. ... ... ... •.. Terms for letters, &c Postage and other disbursements 1877. May 24th. Attending on the account in the registry, looking up the books, and ascertaining the amount of the net proceeds now in Court of the sale of the Tfatrnt ... ... ... ... ... ... 0 6^ Summons to direct amount of the prooeeds of sale to be paid to Mr. W 0 6 ^ Paid issuing 0 3 <' Copy summons for registrar 0 i ^^ Copy and service on adverse solicitors 0 4 6 29th. Attending our summons when order was made subject to a declaration of the satisfaction of the salvage action being filed 0 6 ^ Paid for order 0 5 0 Copy and service on adverse solicitors 0 3^ June 12th. Paid poundase, and for preparing receipt ... 12' Paid stamp on judges order for payment 0 5 <) Attending in the registry with Mr. W. on his re- ceiving the amount and signing receipt 0 6^ Attending filing judge's order and receipt 0 6^ July 2nd. Summons for payment out of money paid into Court as security for costs 0 6? Copv for the registrar 0 8P Paid issuing 0 3*^ Copy and service .., , 0 4 6 1 1 0 15 0 0 0 6 0 10 0 3 U 2 8 0 4 6 8 19 0 15 0 10 3 0 0 (I BILLS OF COSTS. 547 Attending summonB when order made Paid for order Copy aud service Paid poundage fees, and for receipt ... Paid stamp on judge's order for payment Attending receiving the amount, aud signing receipt Attending filing j udge's order aud receipt Higher Scale. £ f. d. 0 6 8 0 6 0 0 3 6 2 12 7 0 5 0 0 6 8 0 6 8 vv2 INDEX. The letter n. aflized to the number of a page indicates that the reference is to a footnote. ACCIDENT, inevitable, definition of, 48 does not create cause of action when it occurs during continuance of a towage contract, 40 nor when it is the cause of a collision, 44, 48 burden of proof of, is on defendant after plaintiff has made out a jTrimd/oeie case of negligence, 48 ACCOUNT, application for, when not indorsed under 0. ILL, r. 8, 174 ACCOUNTS, when Court may order to be taken, 209 in actions by co-owners, 77, 79. And 8U Co-Ownebs. must be furnished by plaintiff before bringing an action for- wages or necessaries, 67, 208 ACTION, in rem and in personam^ distinction between, 141 commenced in one form must continue in that form, 142 Court will order proceedings in, to be stayed where lis alibi pendens for same cause of action, 142 commencement of, by writ, 142 when bailee of ship brings, owners will be prevented from bring- ing, by Court, 176 party to, 174 when commenced in name of wrong, 174 any person having interest may be, 175 charterer in salvage action, 175 representative of a foreigner, 175 trustee of bankrupt, 175 bailee of ship, 175 650 INDEX. ACTION (oofifmiMl). against whom, may be brought, 176 defendantR need not be interested in all relief demanded, 175 by and against trustees, 176 by and against mairied women and infants, 176 by and against representative parties, 177 by and against partners, 177 misjoinder of parties to, 177 admng, by service of notice of proceedings 178 joinder of causes of, 181 by and against lunatics, 182 pleading matters which arise pending, 188 change of parties by death, &c», S45 tranner of, from one division to another, 142, 247 consolidation of, 246, 247 practice as to, 247, 248, 249 sevenng after consolidation, 249 parties to, may apply for order for detention, preservation, in- spection, or sale of property, 248 practice in such cases, 248, 249 third parties to, 178, 179. See Parties. ADMIRALTY, HIGH COURT OF, history of^ 2 criminal jurisdiction oi^ 2 now forms part of Supreme Court, 4 the principles of law administered in, 5 its equitable jurisdiction, 10 ADMIRALTY DIVISION, formation of, 4 equitable Jurisdiction of^ 10 officers o^ are those formerly attached to Court of Admimltv, 225 jud^ of, 10 registrar of, 10 foUowB appeals to Court of Appeal, 10, n. chief clerk, 10 jurisdiction oi^ in case of personal injuries inflicted by a person on the high seas, 97 assignment to business subject to right of transfer, 146 sittm^ of^ 272 vacations ol^ 273 office hours of registry, 273 office hours of marshal's office, 273 vacation business in, 273 ADMISSION, notice to admit documents, 209. And mie PLaA]>iNo& notice of, of allegations in pleadings, 209 bv master, evidence, 226 of denied fewts, 191 INDEX. 551 AFFIDAVIT. See Warrant— Evidence. AGENT of ship, when entitled to salvage, 17 AMENDMENT of writ, 143, 195 service of amended writ, 195 of pleadings, 194, 196 times for, 194 how affected, 195 power of Court to order, 195, 196 m discretion of judge, 196 of plea in salvage action, 196 of preliminary Act^ 188 APPEALS, from Admiralty Division, 11 to Houtte of Lords, 11, 271 undertaking as to costs of, 272 to Privy Council from Vice- Admiralty Courts, 128, 129, 130 no appeal lies for costs, 131 Ctjurt is reluctant to disturb decision below on question of lact, 131 costs of appeal to, 132 practice of^ 132 scale of fees in, 133. And see Privt Counoil. to Hij,di Court from Inferior Court of Admiralty, 133 from Admiralty Division to Court of Appeal, 266 none from refusal of judge of Admiralty Division to allow, from County Court, 268 notice of appeal must be served on all parties directly interested, 267 Court has power of amendment, 267 admission of further evidence, 267 practice as to, 267, 268 respondent who wishes decree below to be varied must give notice thereof to appellant, 268 eight days' notice of appeal from a final judgment by respon- dent, 268 two days' notice from an interlocutory order by respondent, 268 appeals from interlocutory orders must be brought within twenty- (me days, 270 appeals from final orders within one year, 270 appeal against ex parte application must be made within four days, 269 appeal must be entered with registrar, 268, 269 must be brought by motion, 271 bringing evidence given in Court below before the Appeal Court, 269 £52 INDES. APPEALS (continued). evidence should generally be printed, 269 costs of printing, 269 no interlocutory order shall prevent Court from giving a proper judgment on merits, 270 appeal shall not operate as a stay of execution, 270 practice as to stay, 270 when optional to make application to Court below, or to Court of appeal, it shall be made to Court below, 270 Court vriH not, if possible, disturb judgment as to amount of salvage, unless manifestly unjust, 271 but will not hesitate to overrule judgment below if based on inferences from facts, 271 costs of, 259 security for costs on, 261, 271 APPEARANCE, in London, 166 in district registry, 168 memorandum of^ 168 notice of, 168 once entered cannot be recalled, 169 under protest, 169 practice on, 169 petition on, 169 address for service, 169 names of parties need not appear in action in rem, 170 entry of, in cause book, 170 non-entry of appearance by solicitor after giving undertaking, 170 of partners, 170 of persons in a firm, 170 in action in rem any person interested may enter, 170 must have a substantial interest, 171 by mortgagees, 171 by trustees of bankrupt, 171 by underwriters, 171 by owners of cargo in a wages suit, 171 by adverse claimants, 171 default of, in actions inpersonanij 171 when plain tiif*s demand is a liquidated one, 172 default of, in actions in renij 172 practice on, 173 payment of prior charges by bondholders where there is a de- fault of, 173 of third parties to defence, 191 of persons brought into action by defendant with plaintiff, 191 APPORTIONMENT OF SALVAGE, 29. See Salvage. INDEX. 553 APPRAISEMENT, commission of, to ascertain value of salved property, 32 application for official, 153 commission of, 154 ofBcial, conclusive as to values, 154 performed by marslial or substitutes, 154 commission must be left at marshal's office, 154 costs of, 154 ARREST, of ship belonging to a company in liquidation void, 8 immtinity of public ships and property of foreign stale from, 9 And see Warrant. ATTACHMENT, 241. See Execution. for contempt by interfering with property under arrest, 164 And see Solicitor. BAIL, substitution of personal security for the res, 152 undertaking to give, to prevent arrest of ship, 151 generally given for amount of claim, 152 frequently given for the amount of which liability is limited, 54 for safe return of ship given by co-owners, 78 may be required for lafl value of property, 112 idter caveat against warrant is entered, 151 may be reduced in amount by the Court, 153 can be asked in respect of a counter-claim, 153 value of property for which given may be fixed by parties, 153 or property may be appraised by marshal, 153 given m the registry, 154 practice as to, 155 . the sureties, 154 address of sureties, 155 signing bail bond, 155 objection to sureties, 155 before a commissioner, 156 practice as to, 155 affidavit of justification, 155 examination on, 156 objection to sureties, 156 filmg bail bond, 166 in salvage actions, 158 value of property must l^e agreed on, 158 or affidavit of value filed, 158 agreement is binding on parties, 168 value shown by affidavit also is generally conclusive, 168 can be appraised if necessary, 159 owners of ship found to blame in a collision suit may put in, in lieu of salved ship in action of salvage, 171 BALANCE OF PROCEEDS, 233. See Judgment 554 INDEX. BABGE, adrift in the Thames not a wreck, 28 regulationa as to lights do not apply to dumb, 45, n. damage to, 43, n. BLOCKADE RUNNING, effect of, on wages action, 69, u. BOTTOMRY, principles of contract of, 86 ship may be subject of, 87 ana the freight to be earned in ii particular voyage, 87 cargo may be subject of, 87 but must 1)e first put on board, 87 boud must be in writing, 85 particular of contract must be set out, 86 bond may be partly good and partly bad, 86 validity of lx)nd does not deteniiine amount due under it, 87 contract of, is governed by general maritime law, 93 master is eenerally the borrower, 87 who may Tend money on, 88 owner may at a foreign port, 88 creditor cannot take bond for a suljsisting debt, 88 locality where contract made does not afiect validity of boud, 88 necessity is the foundation of, 88, 90 how proved, 89 instances of, 89 communication with owners necessaiy, 90 non -communication must be specially pleaded, 185 inquiries should lie made bv lender as to impossibility of master obtaining money except by, 91 loan is repayable except when ship or cai^o is totally lost at sea or by capture, 91 holder of bond on freight entitled to receive money paid in limi- tation action in respect of freight, 10 interest on, 91, 92 will be reduced if exorbitant, 91 effect of absence, or presence of, on validity of bond, 91 usual rate after bona due, 92 delay in enforcing bond may caiiae it to lose its UBual priority, 92 lien, for, 93 insurance of risk, 92 agreement to postpone payment of bond cannot be enforced in Admiralty Division, 93 Court will enforce agreement for a bond, 93 the last in time of holdeis of two or more bonds ranks first, 99 when cargo alone is hypothecated, ship and freight will be liable, 99 rank of bondholder against claims for wages, 98, 100, 101 when master bound personally, bond may rank against cargo, INDEX. 555 BOTTOMRY {continued). bond as a collateral security, 92 affidavit to obtain arrest of ship in action of, 150 in an action on bond original bond must be in Court, 173 bondholders with leave of Court may pay prior charges on ship, 173 affidavit of charges is necessary, 174 BREACH OP CONTRACT OR DUTY, in carriage of cargo, 50 by owner, master, or crew of ship, action fur, 50 examples of, 52 law by which contract is governed, 52 how damages Siuessed, 58 See Damages and Cargo. BRITISH FLAG, forfeiture of sliip for unlawfully using, 95 CABLE, damage to submarine, by ship, 44, n. CARGO, commission to unload, 154 arrest of, for freight, 59, 165 how released by payment into Court, 156, 157, 165 affidavit necessaiy, 156 appearance by owners of, in a wages suit against ship and freight, 171 damage to, by collision, 50 damage to^ by ship on wliich it is laden, 50 breach of duty in carriage of, 50 parties to action, 50 when such action will lie, 50 need not necessarily be landed in England, 51 how damage proved, 53 counterelaun may be set up for general average, 53 how damages assessed, 56 sale of, when deteriorating, 245, 249, 250 CAVEAT release book, 158. See Bail— Warrant. warrant book, 151 CHAMBERS, all proceedings in, must be taken by summons, 252 practice on, 252 summons must be sealed in the registry, 252 duplicate summons must be left in registry, 252 556 INDEX. CHAMBERS (continued). summons must be scsEiled in the registiy {continued), order will be made if party summoned does not appear, 252 counsel may be employed in, 252 smnmons may be adjourned into Court, 254 registrar may refer it to judge, 253, 254 appeal from registrar to judge, 253 is no stay of proceedin<^, 253 must be brought within four days, 253 CHANCERY DIVISION, how maritime lien enforced in case of winding-up order in, 8 CHARTERERS, when entitled to salvage, 20 should be party to action for salvage by chartered ship, 175 rights of, in respect of a mortgaged ship, 79 n., 82 CINQUE PORTS, what are, 120, n. jurisdiction of Admiralty Court of^ concurrent with that of High Court, 120 proceediugH in, 120 judge of, 120 commisnioners wkhin jurisdiction of, 121 local extent of their juristliction, 121 their jurisdiction, 121 appeals to Privy Council from jud^e of, 133 appeals to High Court from commissioners of, 138 by salvors, 138 new evidence, 138 costs of, 138 appeals to Admiralty Court of, 139 from County Court within its jurisdiction, 139 from commissioners of, 139 CITY OF LONDON COURT, jurisdiction of, 113 local limits, 113 same as a County Court, 113 appeal from, to High Court, 96 CLAIM, STATEMENT OF, 189. See Plradinq. COLLISION, regulations for preventing, 45, 428 whither binding outside territorial jurisdiction of Admiralty Division, 46 list of decisions on, 428--432 colliding ships are bound to render assistance to each other, if necessary, 20 INDEX. 557 COLLISION (cmUinued). effect of £Ealare to do so, 47 mistake of one ship in agony of collision will not make her to blame if not otherwise negligent, 44 And see Damaob. COMPANY, arrest of ship on winding-up of, is generally void, 8 how maritime lien enforced on a winding-up, 9 CONSOLIDATION of actions, 247 costs given against party who refuses to consolidate, 247 practice as to, 248 CONSUL, notice of action for wages against a foreign vessel must be sent to, 61, 149 notice to, may be waived by judge, 150 certificate of, is necessary when viaticiim is demanded by foreign seamen, 173 CONTRACTS, by what law governed, 52 actions for breach of, and duty, by owner, master, or crew of a ship^Sl CO-OWNERS, Court will not usually interfere in disputes between foreign, 78 Court will examine title of, 77 Court seldom orders ship to be sold at instance of minority of, 77 ' majority have right to employ ship, 78 Court will take accounts oi ship belonging to, 79 Court has jurisdiction over past, 80 coimterclami for damages by, for mismanagement of other, 80 equitable claims and defences of, recognized, 78 effect of not appearing, when some apply for sale, 79 British, in foreign ship cannot obtain arrest, 78, n. COSTS, in County Courts, 112 in Court of Passa^, 115 in salvage proceedings before justices, 119 costs generally are in the discretion of the Court, 254 County Court Acts, as to, no longer in force, 15, 262 in actions for salvage, 254, 255 sometimes ^ven nomine expensarwrn, 255 equal division of, when action is successfully brought against ship, freight, and ca^, 255 of person wrongly Drought into action, 255 558 INDEX. COSTS {contiwuei). in aetionB for towage, 256 in actions for damage, 256 when defence of comuulsoiy pilotage is set up, 256 when both parties to olame, 256 when damage is result of inevitable accident, 256 in actions for damage to car^. 257 in actions for limitation of bability, 257 in actions for wages, 257 master loses, if he does not furnish accounts, 257 maintenance money forms part of coats of cau^e, 66 in actions for necessaries, 258 in actions for possession, 258 in actions of mortgage, 258 taxed as between party and party, 258 in actions of bottomry, 258 aoiinst the Crown, 357 wnen action discontinned, 192 when there has been a tender, 258 on a reference, 259 of appeal against registrar'a report, 259 in the Court of Appeal, 261 secuiity for, 254 general practice, 260, 261 when plaintiff is oat of jurisdiction, 260 when poverty is a ground for, 261 in case of foreigners, 260, 261 in case of a counterclaim, 261 amount of, varies, 261 must be paid into Bank of England, 961 in Court of Appeal, 261, 262 re-azrest of ship for, when bail insufficient 153 varying order as to, by Court of Appeal, 268 when respondent has not given notice that he will seek to vary decree appealed against, 268 of sale of ship for Mnefit of several parties, 232 solidtor's chs^ge on property for, 255 of official appraisement, 154 execution for, when not covered by amount endorsed on writ, 143 bond for, 264 taxation o^ 263 principle of, 263 appeals against, 263 order for payment of, 263 interest on, 263 judge will not usually reverse registrar's decision, 263 Detween solicitor and client, 263 COUNTEBX^LAIM, 183, 185, 191. See Plbading. COUNTY COURTS, Admiralty jurisdiction, wl^en first given to, 103 INDEX. 569 COUNTY COVRTQ (continued). extent of jnriBHlction of, 104 in BiutB for distribution of aalvage, 105, n. over charter parties, 107 none over bottomry bonds, 107 conflict of decisions as to jurisdiction of, over some actions, 106 local extent of jurisdiction conferred by Order in Council, 107 has same powers over actions as Hijrh Court, 111 how proceedings in, are commenced, 108 appearance, 110 when cause may be heard, 108 transfer of actions from, to Hi^h Court, 108 of part of the proceeding, 106, 110 caveat against release in case of, 158 oautical assessors in. Ill rules of law in High Court to be observed in, HI enforcement of judgments in, 111 arrest of ship by, when defendant unknown, 111 registration of judgments in, 112 rate of costs in, 112 taxation of costs in, 112 forms in, 1 13 appeal from, to High Court, 133 how brought, 133 by instrument of appeal, 134 by motion, 135 notes of County Court judge on, 135 examination of witnesses on, 135 security for costs of, 134 application for leave to, 134, n. from, to Admiralty Court of the Cinque Ports, 139 COURT OF PASSAGE AT LIVERPOOL, iurisdiction of^ 114 local limits of, 114 rules of practice in, 114 costs in, 115 appeals from, to High Court, 133 CREW, salvage services by crew of salved ship, 16 of ships of the Crown entitled to salvage, 18 when Doth salving and salved ships belong to the same owner, 21 apportionment of salvage reward among, 29 salvage reward distributed according to rateing, 30 are not bound by agreement of master as to scdvage, 23 unless assented to by them at time of maJcing, 23 crew space, deduction in respect of, 54, n. CROWN, actions in respect of damage by ship of, brought against captain, 43 practice in, 150 560 INDEX. DAMAGE, division of subject, 42 general jurisdiction of Admiralty Division in action for, 42 in actions for damtige by collision, 43 none over public ships of foreign state, 9, 43 by whom actions for, may be brought, 43 to ship by piles in a river, 44, n. the grounds of liability in actions for, by collision, 44 if a reasonable doubt as to cause will be considereil an accident, 45 when caused by inevitable accident, 44, 48 when two ships are in fault, 48 after infringement of regulations under M. S. Acts, 1854—1872, 45 effect of those regulations as regards foreign ships in foreign waters, 46 when ship is being towed, 45 acts whicn have been held to be negligence, 47 contributorv negligence prevents a ship recovering for, 47 examples of, 47 when committed within foreign territory, 46 no action lies for, result of but not causeil by collision, 43, n. liability of master or owner of ship removed, when caused by negligence of pilot, 44, 49 no liabuity for, if result of orders of person bound to be obeved, 44 through orders of harbour master, 44 to cargo from collision, 50 to cargo under Admiralty Court Act, 1861, 60 who may be parties, 50 when an action for, will lie, 51 negligence in, 50 examples of breach of duty, 52 limitation of liability in actions for, 54 carriers partly by land and partly by sea can claim, 54, n. release of ship when limitation is claimed, 54 practice of the Court as to, 55 stay of proceedings when negligence is admitted, 207 action should not be brougtit in High Court if County Courts have jurisdiction, 59 place of, as against other claims, 98 actions for, a^nst ships of Crown, 43 practice m, 150 when caused b^ vessel being launched, 47 actions for, against ships of foreign government will not generallv Ue,43 DAMAGES, when both ships are in fault, 48 general principles of, 56 how assessed, 56 when ship ia totally lost, 56 when ship is partially injured, 56 salvage paid by damaged ship is a portion of the, 57, n. INDEX. 661 DAMAGES (continued), generally assessed by registrar and merchants, 58 damages are limited by statute when loss has been caused with- out actiial fault or privity of owners, 54 this applies to co-owners who are not in fault, 54 amount of^ m actions for injury to goods, 58 in actions for breach of duty, 58 may be recovered in action for wages after a wrongful dismissal, 66 security cannot be required for, 261 to ship in rendering salvage services, 25 may be assessed by registrar and merchants, 26 DEBTORS ACT, proceedings under, 239 forms under, 240 DEFENCE, STATEMENT OF, 190. See Pleading. DELAY, definition of cause to justify, 52, n. DEMURRER, 196 practice as to, 197 should be to merits of action, 198 points on argument of, 198 DERELICT, 23, 28 DESERTION, what is, by a seaman, 68 DEVIATION BY SHIP, effect of, on policy of insurance, 26 DISBURSEMENTS, by master, 66 what are, 66 master must have actually paid money for, 67 master must furnish accounts of, before action, 67, 257 no claim for, by other officers, 67 DISCONTINUANCE, 192 . payment of costs on, 192 of interest on, 192 what is suf&dent uotice of, 19^ QO 362 iKDfiX. DISCOVERY, intemgatoiieB, 202 time for deliyering, 202 ooetB occasioned by, 203 when party a body corporate, 203 Btriking out, 203 object of, 203 answers to, 204 when allowed or disallowed, 204 ma^ be used at trial, 208 production of documents, 205 every document must be produced unless privil^ed, 205 reporte to the Lords of the Admiralty, 205 examples of rule, 205 notice to produce documents for inspection, 206 production of, 206 when owners of a ship are foreigners, 206 order for inspection of documents, 207 service of oxxier, 208 inspection may be reserved by Court, 207 DISMISSAL, wrongful, of seaman, damages for, 65 DISTRESS, effect of signals of^ on salvage claims, 14, 15 DISTRICT REGISTRIES, 11 appearance in, 168 filing pleadings and documents in, 188 proceedings in, 216 writs of execution from, 217 entry of judgment in, 217 jurisdiction of district r^strar, 217 referring matters to judge, 217 appeal Irom, 217, 218 removal of action from, 218 in action in rem by party who intervenes, 218 procedure, 216, 219 removal to, of action from London, 218 entiy of cause for trial in, 221 times at which they are open, 273 DOCK DUES nmk before bottomiy bonds, 101 DRUNKENNESS, effect 0^ on claims for wages^ 69 IND£X. 563 ELEGIT, writ ofy 241 EVIDENCE, generally witnesses are examined before the Court, 225 ezceptionB to this rule, 225 witnesses should be kept out of Court till called, 233 attendance of witness and documents is procured by subpoena, 225 costs of material witnesses present not called usually allowed, 226 cross-examination of witnesses by counsel for rival salvors, 222 admissions of master admissible as, 225 admissions by mate, crew or pilot not, 225 by affidavit, 226, 227 affidavit may be sworn, printed or written, 265 filing affidavit, 228 cross-examination on affidavits, 228 practice, 226, 228 examination of witnesses before trial, 226 practice as to examination of witness before examiner or com- missioner, 226, 392 notice of title of action, &C., must be served on adverse solicitor, 393 fees of one counsel may be allowed, 393 judge may order this evidence to be taken down in short- hand, 393 certificate that evidence has been read to witness, 393 filing deposition, 393 answers to interrogatories may be used as at trial, 208 on appeal from County to High Court, 135 new, on appeal from justices, 136 on appeal from Cinque Ports Commissioners, 138 EXECUTION, generally, 235 when judgment is pronounced m personam, 234 when bail has been ^ven, 232 meaning of term writ of execution, 235 judgment or copy must be produced before writ is issued, 236 prcBcipe must be filed, 236 indon^ment of writ, 236 date, 236 right to writ of^ arises when judgment is entered, 237 exceptions, 237 against partners, 235 stay of, 237, 270 appeal does not operate as, 270 how long writ remains in force, 237, 238 procec^ngs under the Debtors Act, 239 practice, 239 forms, 240 writ of ^. /a., 241 oo2 564 INDEX. EXECUTION (eatUiwued). attachment, 241 of debts 242 charging stock or sharers 2*^ writ of Beqaestration, 244 writ of deliveiy, 245 FIERI FACIAS, writ o^ 241 FIRE, saving life or property fironi destraction by, is salvage, 13, n. FORFEITUEE of British ship, 94 FREIGHT will be ordered to be paid into Court, 165 in co-ownership action, 79 maritime lien extends to, 7 holder of bottomry bond on, entitled to money paid in respect of, 10 value of, how calculated for salvage purposes, 32 of mortgaged vessel, 82 cargo can be arrested as representing, 59, 165 payment into Court, 166, 157, 165 affidavit as to value of, 156, 157, 165 HARBOUR MASTER, if collision occurs through orders of, ship not to blame, 45 if orders of^ not obeyed, ship to blame, 47 INFANT, party to action, 176 guardian of, how appointed for action, 176 INTEREST on money paid into Court, when allowed, 157 on sum awarded by judgment, 231 on bottomry bonds, 91 on value of ship lost by collision, 57 on costs, 237 INVESTMENT, moneys in Court sometimes iQvested, 237 INDEX. 565 ISSUES, judge may state, 194 statutory power of Court of Admiralty to state, for trial, 219 JERSEY AND GUERNSEY, royal Courts of, 122 their local limits, 123 practice in, 122 aa to enforcing salvage bonds by, 123 appeal to Privy Council from, 129 two kinds of appeals, 129 JUDGMENT, motion for, 229 may be ordered to stand over for further consideration, 229 on default of appearance, 172, 173 on default of pleading, 199 setting aside judgment by default, 200 entry of, 230 filing documents on, 230 in Admiralty Division, decree entered as judgment, 230 interest runs from date of^ 231 practice after delivery of, 231 when bail has not been given, 231 when bail has been ^ven, 231 in actions of possession, 234 in actions in personam, 189 alteration of decree after, 234 when a balance remains in the registry, 233 is available as assets to creditors after payment of claimant, 233 priority of decrees, 233 sale by marshal, 23 payment into Court by marshal of proceeds of a sale, 231 payment out of Court of proceeds of sale, 233 sale of ship for the benefit of several P^ies, 232 enforcing foreign judgment by Admiralty Division, 9 JURY, 219. &e Trial. JUSTICES OF THE PEACE, Admiralty jurisdiction of, 16, 116 under Harbours Clauses Act, 1847, 115 under Merchant Shipping Act, 1854, 115 jurisdiction of, over disputes as to salvage, 115, 118, 119 under Merchant Shipping Act, 1862, 117 over disputes as to wages, 118 over allotment notes, 119 nautical assessors may sit with, 78 666 INDEX JUSTICES OF THE PEACE {cmtinued). orders by, enforceable by distress, 119 Hiffb Court may condemn plaintiff in damages and costs who snould have brought claim before justices, 116 costs in proceedings before, 117, 119 appeal m>m, to High Court on award of salvage, 136 new evidence on, 137 when a further claim by salvors is to be heard appeal will not be postponed, 137 costs of, 137 certificate of value as evidence, 136 LIEN, extent of, 6, 7 travels with a vessel, 7 maritime, what it is, 6 abandonment of, in actions of salvage by ships of the Crown, and taking security in place of^ 33 none for general average, 6 for salvage services, 31 for wages, 67 arrest of ship for, under winding-up order in Chanoeiy Division void, 8 may be lost by want of due diligence, 8 other matters which extinguish it, 8 in actions for damage, 59 exists against a foreign ship for necessaries, 75 but none against British ship for necessaries, 75 possessory, on ship for work done, 76 LIGHT-SHIP, men left on board not entitled to salvage, 29, n. log of, as evidence, 225 LIMITATION OP LIABILITY, when there is a right to, 54 claim for, does not necessarily admit liability, 54 owners of tug can take benefit of, 41 how amount payable ascertained when both to blame, 54 practice as to obtaining, 55, 183 LIS ALIBI PENDENS, 142 MAINTENANCE, sums for, recoverable with wages, 65 MAN, ISLE OF, Admiralty Court of, 123 practice, 124 enforcement of bonds bv, on salvage by Queen's ships, 124 appeal to Privy Council, 130 INDEX. 5G7 MARSHAL, his duties j^erally, 10 liable for safe custody of arrested property, 164 at outports, coUecton of customs are his substitutes, 164 taxation of expenses of, 231 MARSHALLING ASSETS, 101 And 9u Bail— Warrant— Judomekt—Salb. MASTER, remoT^ of, by Court, when necessaiy, 96 appointment of new master, 96 Court can order master to deliver up certilicate of registry, 97 when part owner of ship, his claims for wages postponed to those for necessaries, 101 when his claims forwages conflict with those of seamen, postponed to them, 101 master bound personally by bond will generally be postponed to bondholder, 100 exception to this rule, 101 master by agreement as to amount of salvage reward can bind owners, but not crew, 23 breach of duty by, in regard to cargo, 50 his right to wM;e8, 62 disbursements by, are on the same footing as wages, 66 causes which produce a forfeiture of wases, 69 who pays off material men has a claim for disbursements, 76 must fcumish accounts before suing for wages or disbursements, 67 or will lose costs, 257 declarations by, are evidence, 225 MORTGAGE, jurisdiction of Admiralty Division over, 81 when ship is a foreicn one, 81 a dejure arrest founds jurisdiction over unregistered, 81 when mortgagee entitled to freight, 82 rights of mor^agees under a, 83 rights of mortgagors imder a, 82 of British ship must be in form under M. S. Act, 1854, 84 equitable, of uniinished ship, 84 eouities will be enforced between parties to, 84 enect of registration of, against subsequent mortgagees, 83 Court will correct mistakes, 84 no maritime lien for, 84 mortfln^e may appear in an action against a ship if his interests wiS be affected, 129 mortga^r*s contracts valid if they do not lessen mortgagee'd security, 82 charterer may obtain release of ship arrested by mortgagee, 82 mortgagee cannot generally bring an action of restraint, 79, n. 568 INDEX. MOORING DOLPHIN, damage to, 44, n. MOTION, practice on, 250 ex. parte, 250 notice o^ 250 two days between notice and hearing, 251 costs given against party who unnecessarily appears on a, 251 application to Court of Appeal must be by, 271 See Judgment. NAUTICAL ASSESSORS, in County Courts, 111 their functions, 111 in claim for salvage before justices, 117 in Admiralty Division, 223 their functions, 223 evidence on matters of nautical skill inadmissible when present, 223 view by, 224 fee to, 224 NECESSARIES, jurisdiction of Admiralty Division in action for, 72 what are, 72 examples of^ 73 actions for, in case of foreign ship, 74 actions for, in case of British ship, 74 master must have authority to bmd owners in respect of, 73 claims for, by agent of foreim ship, 74 transfer of foreign ship to British owner does not destroy lien, 74 claims for general balance in accounts between principal and agent not admissible, 75 maritime lien for, on foreign ship, 75 no maritime lien on British sliip, 75 actions for, under £150, should not be brought in High Couit^ 76 order to take accounts in action for, 210 merger of claim for, in claim under a bond, 75 rank of claims for, 98, 100, 101 in action for, colonial held not a foreign port, 74 . NECESSnr, foundation of loan in bottomry, 88 definition of, in regard to bottomry bonds, 88 NON-GOMPIJANCE with rules shall not render proceedings void, 272 IND£X. 569 NOTICE, service of, how effected, 264 verification of, 264 after proper time, 264 left at registry must be signed by the solicitor or his clerk, 264 notices may be sent from registiy by post, 264 OLERON, laws of, 5 ORDER enforced in same manner as judgment, 238 OUTPORT CHARGES, bill of^ how made up, 255 OWNER. See Co-Ownkr8. mauaging, adding as defendant in co-ownership action, 79, n. PARTICULARS. 208 when allowed, 208 PARTIES, claim against third, 178 in actions of contract, 179 in actions of tort, 179 when may be brought into action, 179 practice when leave to brin^ in, is granted, 180 cannot deliver a counter-claim, 191 appearance of, 191 adding, in action of possession to secure costs, 177 chaoge of, 245 new to action, 245 And see Action. PASSENGERS, right of, to salvage, 16 clothes and luggage of, exempt from arrest, 150, 164 PAYMENT into Court in satisfaction of claim, 200 order of judge necessary to obtain payment of moneys out of Court, 167 oavecU must be entered to prevent payment out of Court, 233 570 INDEX. PILOT, action against, for damage, will not lie, 42 com[>ulsoi7 emplo^^ment of^ 49 districts in which it is, 49, n. local statutes as to, 49, n. effect of^ on actions for damage, 49 admissions by, not generally evidence, 225 effect of foreign law as to compulsory employment of^ 49, «i. when entitled to claim salvage, 17 actions by, for wages or work done, 62 PILOTAGE, claims for, rank before bottomry bonds, 101 PLEADING, rules of, 182 must be brief, 182 material facts must apjiear in, 183, 184, 185 anv right or claim which can be tried in the same action may be set up by counter-claim, 183 set off and counter-claim must be stated specifically, 185 application to exclude, 191 Uiird party cannot deliver, 191 cross actions superseded by counter-claims, 183 limitation of Hability can be claimed by counter-claim, 183 evidence not to appear in pleading, 184 delivery of^ 184 . date of, 183 need not be filed except in cases of objection to regi.'iu:t."— law Timu, Peel.— Fufe " Chancery." Prentice's Proceedings in an Action in the Queen's Bench, Common Pleas, and Exche- quer Divisions of the High Court of Justice. By SAMUEL FBENTICE, Esq., one of Her Majesty*! CotmseL Second Edition. Boyall2ma 1880. 12«. ADMIRALTY.— Pritchard's Admiralty Digest.— Second Edition. By B. A FBITCHABD, D.G.L., Banister-at-Law, and W. T. PKITGHABD. With Notes of Cases from French Maritime Law. By AL6EBX0N JONES, Avocat k la Conr Imp6:iale de Paris. 2 vols. Royal Svo. 1865. 8/. Roscoe's Treatise on the Jurisdiction and Practice of the Admiralty Division of the High Court of Justice, and on Appeals there- from, &C. With an Appendix containing Statutes, Rules aa to Fees and Costs, Forms, Precedents of Pleadings and Bills of Costs. By EDWARD STANLEY ROSCOE, Ei^., Barrister-atLaw. Second Edition. Demy 8yo. 1882. 1^ U, " Mr. Boscoe has performed his task well, supplying in the most convenient shape a clear digest of the law and practice of the Admiralty Courts." ADVOCACY.— Harris' Hints on Advocacy. Conduct of Caues Civil and CriminaL Classes of Witnesses and suggestions for Croes-Examining them, &c., &c. By RICHARD HARRIS, Barrister- at-Law, of the Middle Temple and Midland Circuit. Sixth Edition. (Further Revised and Enlarged.) Royal 12mo. 1882. 7s. ed, " Full of good sense and just observation. A very complete Manual of the Advo- cate's art in Trial by JnTj/'—Solicitort' Jour Mil. •#• A Catalogue of Modem Law Worhi, HeportSf dx.j price 6d. poit free, [No. 21.] A 8TKVESS AND S0X8* LAW PUBLICATIONS. AG^ENCY.—Petg rave's Principal and Agent.— A Manml of the Law of Principal tad Agent. By K a PBT6RAYF, Solicitor. 12mo. 1857. 7s. 6d. Russell's Treatise on Mercantile Agency.— Second Edition. 8vo. 1873. 1I& AGRICULTURAL LAW.— Addison's Practical Guide to the Agricultural Holdings (Hngland) Act, 187B (38 A 39 Vic. c 92), ud Trefttise thereon, ahowing the Altentknt in the Law, &c Bj ALBERT ADDISON, SoUdtor. 12ma 1876. Net 21. 6d. Cooke on Agricultural Law.— The Law and Practice of Agricultura] Tenancies, with Numerooi Precedenta of Tenancy Agreementfl and Farming Leases, Ac, &c Bj 6. WINGROVE COOK K, Esq., Bamster-at-I^w. Syo, 1851. 18«. Dixon's Farm.— Ttcfe "Fann." ARBITRATION.— Russell's Treatise on the Duty and Power of an Arbitrator, and the Law of Submissions and A>^ards; with an Appendix of Forms, and of the Statutes relating to Arbitration. By FRANCIS RUSSELL, Esq., ll.A^ Banuker-at-Law. Fifth Editian. Rojai 8vo. 1878. 12. 1C«. ARTICLED CLERKS.— Butlin's New and Complete Examination Guide and Introduction to the Law ; for the nse of Articled Clerks, comprising Connea of Read- ing for the Preliminary and Intermediate Examinations and for Honours, or a Pass at the Final, with Statute, Case, and Judicatara (Time) Tables, Sets of Examination Papers, Ac, Aa By JOHN FRANCIS BUTLIN, SoUdtor, Ac. 8va 1877. 18s. *' In suppljrlnff law studentB with materials for preparing themaelTeB for exami- nation, Mr. JButUn, wo tbijik, has distanced all oomptstitors."- Lat§ Kmu. Rubinstein and \A^ard's Articled Clerks' Hand- book.— ^Being a Concise and Practical Guide to all the Steps Necessary for Entering into Articles of Clerkship, passing the Preliminary, Intermediate, Final, and Honours Examinations, ob- taining Admission and Certificate to Practise, with Notes of Cases aflfecting Articled Clerks, Suggestions as to Mode of Reading and Books to be read during Articles, and an Appendix containing the questions asked at the recent Preliminary, Intermediate, Final, and Honours Examinations. Third Edition. By J. S. RUBIN* STEIN and S. WARD, SoUciton. 12mo. 1881. is. '* No articled clorlc thoiild be wlthoot It." -Law TkMt. " We think it omits nothlnf which it ought to oontnln.'*— law Journal. " Will serve as a simple and practical guide to all the steps necessary for entering Into articles of dcrlcship to solicitors, for passtog the several examinations, and for procuring admission on the Roll." — Law Tima. ARTICLES OF ASSOCIATION.— Palmer.— Fi(2e"ConTeyancmg." ATTORNEYS^Cordery.— Fide "SoUcitors." PuUing's Law of Attorneys, General and Special, Attomeys-at-Law, Solicitors, Notaries, Pxx>ctors, Conveyanoers, Sciiveners, Land Agents, House Agents, Ac., and the Offices and Appointments ususiUy held by them, &c. By ALEXANDER PULLING, Serjeant-at-Law. Thiid Edition. 8vo. 1862. IBs. Smith.— The Lawyer and his Profession. — ^A Series of Letters to a Solicitor commencing Business. By J. ORTON SMITH. 12mo. 1860. u, %* AU itafidard Lav Works are kept in Stocky in law caff and other hindingt. 119, CHANCERY LANE, LONDON, W.O. 3 ASSETS, ADMINISTRATION OF. — Eddis' Principles of the Administration of Assets in Payment of D ebts. By ARTHUR SHELLY EDDIS, one of Her Majesty's CounseL Demy 8va 1880. Of. " The subject is one of consideroble importance, and we have no doubt that the author's treatment of it will assist students and otiiers in acquiring the elementary principles of this head of equity jtuisprudence. The cases are brought down to the present time."— Xaw TiiueM, AVERAGE.— Hopkins' Hand-Book on Average.— Thiid Edition. 8vo. 1868. 18«. Lowndes' Law of General Average.— English and Foreign. Third Edition. By RICHARD LOWNDE^ Author of " The Admiralty Law of Collisiona at Sea." Royal 8vo. 1878. 21«. BALLOT.— FitzGerald's Ballot Act.— With an Iittboduotion. Forming a Guide to the Procedure at Parliamentaiy and Municipal Elections. Second Edition. Enlarged, and containing the Municipal Elections Act, 1875, and the Parliamentary Elections (Retnniing Officers) Act, 1875. By GERALD A. R. FITZGERALD, M. A, ol Lincoln*8 Inn, Esq., Barrister-at-Law. Fcap. 8yo. 1876. 5f. 6d. '* A Qsefhl guide to all coucemed in Parliamenuury and Hanidpal Eleetion&*— Zaw Maaatine. '^We should strongly adTloe any person c-^nnected with eleeilons, whether acting as candidate, agent, or in any other capacity, to hecomo posaeued of this mannal ** BANKING,- Walker's Treatise on Banking Law^. In- cluding the Crossed Checks Act, 1876, with dissertations thereon, also references to some American Cases, and full Index. By J. DOUGLAS WALKER, Esq., Barrister-at-Law. Demy 8yo. 1877. 14«. " Persona who are interested in banking law may be gnlded ont of many a difficulty by consulting Mr. Walker's ▼olunie.'*— ZiOiv Timu, BANKRUPTCY.— Bedford's Final Examination Guide to Bankruptcy.— Third Edition. 12mo. 1877. 6«. Haynes. — Vide "Leading Cases." Pitt-Lewis.— Fuitf "County Courts." Scott's Costs in Bankruptcy.— FWc" Costs." Smith's Manual of Bankruptcy.— A Manual relating to &mkruptcy. Insolvency, and Imprisonment for Debt ; comprising the New Statute Law verbatim, in a consolidated and readable fonn. With the Rules, a Copious Index, and a Supplement of Dedaions. By JOSIAH W.SMITH, B.C.L.,Q.C. 12ma 1878. lOs. *«* Hie Supplement may be had separately, net, 2<. M, >A^illiams' Law and Practice in Bankruptcy: comprising the Bankruptcy Act, the Debtors Act, and the Bankruptcy Repeal and Insolvent Court Act of 1869, and Uie Rules and Forms made under those Acts. Second Edition. By ROLAND VAUGHAN WILLIAMS, of Lincobi's Inn, Esq., and WALTER VAUGHAN WILLIAMS, of the Inner Temple, Esq., assisted by FsAirois Haluett Habdoabtlb, of the Inner Temple, Esq., Barristers-at- Law. 8vo. 1876. 11, 8«. ** It would be diiflcult to speak in terms of undue praise of the present worlu" BAR, GUIDE TO THE.— S bearwood.— Fide "Examination Guides." BILLS OF EXCHANGE — Chalmers' Digest of the LavNr of Bills of Exchange, Promissory Notes, and Cheques. By M. D. CHALMEBfJ, of the Inner Temple, Esq., Barrister-at-Law. Second Edition. D(my8vo. 1881. 15^. *' In its present form this work contains a very complete digest of the subjects to which it relates."— r/i« lav Timet, Sept 17, 1881. '* Ai s bandy book of referenoe on a difficult and important branch of the lav, it is most Tsluable. and it ia perfectly plain tbat no patns have been spared to render it complete In every respect. The index is oopioas and well arranged."— Ai^irdajr RtHew, *«* AU itandard Law Works are kept in Stock, in law calf and other hindingt, a2 4 STEVENS AND SONS* ULW PUBLICATIONa BILLS OF EXCHhHOB^Qmiinufd, Chitty on Bills of Exchange and Promissory Notes, ^with references to the lavsr of Scotland, France and America.— Eleventh Editum. By JOHN A. ]tUSS£LL,Eaq^LL.B.,(XDe of Her Mftjesty's CoonseJ, and Judge of Coonty ConrtiL Demy 8to. 1878. IL 8«. Eddis' Rule of Ex parte Waring. By A. C. EDDIS, KA.,ofLiiioolB*iIiiii,Bazxi8ter-ai-Lair. Post8To. 1878. ^ef,2«.M. BILLS OF LADING.— Leggett's Treatise on the Law^ of Bills of Lading; comprinng the vuioos legal inctde&ta attaching to the Bill of Lading ; the legal effects of eadi of the Clauses and Stipnlations ; and the Rights and Liabilities of Con- signors, Consignees, Indorsees, and Vendees, under the Bill of Lading. With an Appendix, containing Forms of Bills of Lading chiefly used in the United Kingdom, Continental, Mediterranean, Trans- Atlantic, African, Asi itic. Colonial, West Indian, and other important trades. By EUGENE LEGGETT, Solicitor and Notaiy Public. Demy 8vo. 1880. 1^. Is. BILLS OF SALE.— Cavanagh.— r«2e "Money Secoritiea." Millar's Treatise on Bills of Sale.— With an Appendix containing the Acts for the Registration of ^Ds of Sale, Preoedent»y &c (being the Fonrth Edition of MiUar and CoUier's Treatise on Bills of Sale). By F. C. J. MILLAR, one of Her Majesty's Counsel, Esq., Barrister-at-Law. ]2mo. 1877. 12». BURIAL AND OTHER CHURCH FEES—Dodd's Burial and other Church Fees and the Burial Act, 1880. —With Notes. By J. THEODORE DODD, M.A., Barrister-at- Law, of Lincoln's Inn. Royal 12mo. 1881. U. CARRIERS.— Browne on Carriers.— A Treatise on the Law of Camera of Goods and Passengen by Land and Water. With References to the most recent American Decisions. By J. H. BALFOUR BROWNE, of the Middle Temple, Esq., BarriBter^t. Law, Registrar to the Railway Conmiiasion. 8to. 1873. 18<. CHANCERY, and Vide " EQUITY." Daniel Ts Chancery Practice.— The Practice of the Chancery Dirision of the High Court of Justice and on appeal therefrom, being the Sixth Edition of Daniell's Chanoezy Practice, with alterations and additions and references to a companion Volume of Forms. By L FIELD, E. C. DUNN, and T. RIBTON, Barristers-at-Law; assisted by W. H. Upjohn, Barrister-at-Law. In 2 vols. Vol, /., demy 8yo. 1882. 22. 2r, •^* Vol, II. in the preu. Danieirs Forms and Precedents of Proceed- ings in the Chancery Division of the High Court of Justice and on Appeal thereft^om; with Dissertations and Notes, forming a complete guide to the prac- tice of the Chancery Division of the High Court and of the Courts of Appeal Being the Third Edition of "Daniell*s Chanceiy Forma.*' By WILLIAM HENRY UPJOHN, Esq., Student and Holt Scholar of Gray's Inn, &c. Demy 8vo. 1879. 2/ 2s. " Mr. Upjohu has restorttd the volume of Chnnceiy Fonxw to the place it held before the recent changes, as a trustworthy and complete collection of precedents. It has nil the old merits ; nothing is omitted aa too trivial or oommonjMace ; the solidtoir's clerk flnda how to indorse a brief, and how, when neceaeary, to irive notice of action ; aud the index to tho forms is full and perspicuous. "- SolkUort* Journal, * It will be as useful a work to practitioners at Westminster aa it wiU be to those in Lincoln's Inn."— Xaw Ttma, •« • ^ W ttandard Law WorU art kept in StocJr, in law my and other hindingi. 119, CHANOEKY LANE, LONDON, W.O. CHANCERY.-OmttMMi. Haynes' Chancery Practice.— The Practice of the Chancery Division of the High Court of Justice and on Appeal therefrom.— By JOHN F. HAYNES, LL.D. Demy 8vo. 1879. ' Ufii. " Materuds for enahlingr the practifcionor himself to obtain the information he may reqiiire are placed before him in a convenient and accessible form. The arrangement of the work appears to be good. '—Law Magazine and Review. Morgan's Chancery Acts and Orders.— The StotatM, General Orders, and Kules of Gonrt relating to the Pt«ctioe, Pleading, and Jorisdiction of the Supreme Court of Judicature, particularly with reference to the Chancery Division, and the Actions assigned thereto. With copious Notes. Fifth Edition. Adapted to Uienew Practice by GEORGE OSBORNE MORGAN, M.P., one of Her Majesty's Counsel, and CHALONER W. CHUTE, Barrister-at-Law. Demy 8m 1876. IMOf. '* This edition of Mr. Morgan's treatise must, we believe, be the most popular with the profession." — Law Time*, Morgan and Davey's ChanceryCosts.— Fide "Costa." Peel's Chancery Actions.— A Concise Treatise on the Practice and Procedure in Chancery Actions. — Second Edition. Including the Practice in Chambers. By SYDNEY PEEL, of the Middle Temple, Esq., Barrister-at- Law. Demy 8vo. 1881. St. 6d. " Mr. Peel's little work gives a very commendable sketch of the modem practice of the Chancery liiTiaion. In deamess and method he rather advances before than lags behind the average of his compeers ; although, from its limited scope, Uie book is more likely to be useful to, or rather to be used by, the student than the pncU upon these subjects ; and it is enriched with a very bearing uiwn the practice of tiie Chancery Division, giving references to all the Reporto." — Law Journal^ June 4th, 1881. "The book will give to the student a good general view of the effect on chancery practice of the Judicature Acts and Orders."— &)/ici tort' Journal, August 6th, 1881. CHANCERY PALATINE OF LANCASTER^Snow and Win- stanley's Chancery Practice.— The Statutes, Ck)n8oli- dated and Greneral Orders and Rules of Court relating to the Practioe, Pleading and Jurisdiction uf the Court of Chanceiy, of the County Palatine of Lancaster. With Copious Notes of all practice cases to the end of the year 1879, Time Table and Tables of Costs and Forms. By THOMAS SNOW, M.A., and HERBERT WINSTANLEY, Esqrs., Barristeis-at-Law. Royal Svo. 1880. 11, 10«. CIVIL LAW.— Bo>Aryer*8 Commentaries on the Modern Civil Law.— Royal 8yo. 1848. 18t. Bowyer's Introduction to the Study and Use of the Civil La w.— Royal 8vo. 1874. St. Cumin's Manual of Civil Law, containing a Translation of, ajid Cws. With % Theoretical and Practicil ComnMnfeaiy, and % Conpendiiim o' the judicial organization and d the eonne of proeednre before tha Tritranak of Commeroe ; together with the text of the law ; the most recent dedaionB of the Conrta, and % gloMaiy of Frendi jadidal terms. By LEOPOLD GOIRAND, lioenci^ en droit In 1 vol (850 pp.). Demy 8yo. 1880. 2<. St. Levi.— Ftcie "International Law.** COMMON LAW.— Archbold's Practice of the Queen's Bench, Common Pleas and Exchequer Divi- sions of the High Court of Justice in Actions, etc., in which they have a common jurisdic- tion.—Thirteenth Edition. By SAMUEL PRENTICE, Eaq., one of Her Majesty's ConoseL 2 vols. Demy 8to. 1879. 81. St. Archibald's Country Solicitor's Practice; a Handbook of the Practice in the Queen's Bench Division of the High Court of Justice; with SUtutes and Forms. By W. f . A. ARCHIBALD, Em{., Barritter-at-Law, Author of ** Forms of Summonses and Orders, with Notes for use at Judges' Chambers." Royall2mo. 1881. U 5& " Wc are much mistaken if it does not become aa widely uaed among the puifiiinn at the boat known editions of the Judicature Acta. ... In eTery place In whidi we have tented the work we find it thoroughly trustworthy. ... Its arrangeiDent is excellent, and altogether it is likely enough to become a popular ■olicitots' handy- book."— The JimtM, January 7, 1882. " We have no doubt that it will meet with due appreciation at the hands of botti London and Country solicitors."— 7Ae Lav MagaiiM, February, 1882. " The author is to be very much complimented on this moat carefol and oompre> hensive manual . . . Admirably arranged and indexed." — fiohcniajr Bgvitm, December 8, 1881. " The commentary is extremely well written . . . Mr. Archibald baa aocceeded In producing a useful and well-arranged book."— Sofurttor't Journal. Ball's Short Digest of the Common Law; being the Principles of Torts and Contracts. Chiefly founded upon the works of Addison, with IlluitrfttiTe Cisai, for the use of Students. By W. EDMUND BALL, LL.B., late *«Holt Scholar " of Gimy's Inn, Barrister-at-Law and Midland Circuit DemySro. 1880. Ifti. " The principles of the law are yery deaiiy and oondsely stated. '—Lam JamjmL Bullen and Leake.— Kic/f "Pleading.*' Chitty.— Ftefo "Forms." Foulkes.— Fitfe "Action." Fisher.— Ffcfe •* Digests." Prentice.— Ftds "Adion." Shirley.— Ffcfo "Leading Cases." Smith's Manual of Common Lavr.— ForPraetHioiien and Students. Comprising the fundamental prinoiples and the points most usually occurring in daily life and practice. By JOSIAH W. SMITH, B.C.L., Q.C. Ninth Edition. 12mo. 1880. lis. COMMONS AND INCL0SURE8.— Chambers' Digest of the La-w relating to Commons and Open Spaces. including Public Parks and Keoreation Grounds, with Tarious ofBdal documents ; precedents of by-laws and regulationa The Statutes in fuU and brief notes of lea ^•» Barrister-at-Law. Imperial 8vo. 1877. Oa. 6d. • ^U standard Law Worh are hq^ in Stock, in la/w calf and other binding$. 119, CHANCERY LANE, LONDON, W.C. COMPANY LAW.— Palmer.— Fufo "Conveyancing." Palmer's Shareholders' and Directors' Legal Companion. — A Manual of every-day Law and Practice for Promoters, Shareholders, Directors, Secretaries, Creditors and Solici- tors of Companies, tmder the Companies' Acts, 1862 to 1880. Third Edition. With an Appendix on the Conversion of Basiness Concerns into Private Companies. By F. B. PALMER, Esq., Bar- rister-at-Law, Author of "Company Precedents.'* 12mo. 1882. Nti, 2«. M. Palmer's Private Companies, their Formation and Advantages ; or. How to Convert your Basiness into a Private Company, and the benefit of so doing. With Notes on "Single Ship Companies." Third Edition. By F. B. PALMER, Esq., Bar- rister-at-Law. Anthorof " Company Precedents." 12mo. 1881. iVe(,2«. Thring.— Fide " Joint Stocks." CONTINGENT REMAINDERS.— An Epitome of Fearne on Contingent Remainders and Executory De- vises. Intended for the Use of Students. By W. M. C. Post 8vo. 1878. 6«. 6d. '< The student will find a pemsal of this epitome of great Talue to him."—* laao Journal, CONSTITUTIONAL LAW.-Haynes.— Ficfc " leading Cases." CONTRACTS.— Addison on Contracts.— Being a Treatise on the Law of Contracts. Eighth Edition. By HORACE SMITH, Esq., Barrister-at-Law, Becorder of Lincoln, Author of ** A Treatise on the Law of Negligence," &c., &c. {In Reparation,) Fry. — Yidt " Specific Performance.'* Leake on Contracts. — ^An Elementary Digest of the Law of Contracts (being a new edition of '* The Elements of the Law of Contracts''). By STEPHEN MARTIN LEAKE, Barristerat- Law. 1 vol. Demy 8vo. 1878. II, 18s. Pollock's Principles of Contract.— Being a Treatise on the General Principles relating to the Yalidity of Agreements in the Law of England. Third Edition, revised and partly re- written. By FREDERICK POLLOCK, of Lincohi*s Inn, Esq., Barrister-at-Law. Demy 8vo. 1881. 12. 8«. The lata I«ord Chief Justice of Bn^land Inhlsjndffment in MttropoUtem JUaOuap Oompanjf^. BroffdtnandotJien^ said, '*The Law is wall put by Mr. PradarioJc Pollook in hi! vary abla and laamad work on Oontnota."—J%t Timet. *' We have nothing but praise for this (third) edition. The material recent cases have been added and the whole work has been carefully revised."— tlngnished qualities of lucidity, order, and accuracy as the wurk before us.'*— . 8va 188£ 6«. AA/^harton's Law Lexicon. — ^A Dictionaiy of Jurispru- dence, explaining the Technical Words and Phrases employed in the several Departments of English Law; including the yarious Legal Terms used in Commercial Transactions. Together with an Explanatory as well as Literal Translation of the Latin Maxims contained in the Writings of the Ancient and Modem Commentators. Sixth Edition. Enlarged and revised in accordance with the Judicature Acts, by J. SHIRESS WILL, of the Middle Temple, Esq., Barrister-at-Law. Super royal Svo. 1876. 21, 2s, '*A8 a work of reference for the library* the handsome and elaborate edittoa of * Wharton's Law Lexicon ' which 3ir. Bhlreat WUl has prodnoed muat sapenede all former issuee of that well-known work."— low Maoasine and Review. ** No law library is ooniplete without a law dictionary or law lexiocm. To (be praetJ-* tioner it is always useful to haye at hand a book where, in a small oompaas, he can find an explanation of terms of infrequent ooenrrence, or obtain a referanoe to statntee on mo»t rafajects, or to hooks wherein partlcnlar sabjects are treatea of at fall length. To the' itudeni it is ahnost indlapenaahle.' — law TimtL %* AU gtandard Law World am hepi t» iStooZ:, tn Jaw eaJifand other Undings^ ▲ 4 IS STEVENS AND SONS* LAW PUBLICATIONS. DIQESTS.— Bedford.— Fuie " ExaminAtioa Gvideik" Chambers'— 7ufc " Public Heilth." Chitty*s Equity Index.— Chitty's Index to all the Beparied GasoB, and Statutes, in or relating to the Prindplee, Pleading, and Practice of Equity and Bankruptcy, in the leveral Courts of Equity in England and Ireland, the PrWy Council, and the Houae of Lords, from the earliest period. Third Edition. By J. MACAULAT, Esq., Barrister-at-Law. 4 vols. Boyal 8to. 1868. 7L7», Fisher's Digest of the Reported Cases deter- mined in the House of Lords and Privy Council, and in the Courts of Common Law, Divorce, Ptobate, Admiral^ and Bank- ruptcy, from Biichaelmas Tenn, 1766, to Hilaiy Term, 1870; with Bef erenoes to the Statutes and Bnles of Court Founded on the Analytical Digest by Harrison, and adapted to the present raactioe of the Law. By R A. FISHEB, Esq., Judge of the County Courts of Bristol and of WeU& Five large volumes, royal 8vo. 1870. {PMished at 121. 12<.) Consolidated Supplement to above, duzing the yearn 1870—1880. By T. W. CHITTy and J. MEWB, Bsqra, Barristers-at-Law. 2 vols. Boyal 8vo. 1880. 8^3f. {OonUnuid AnnuaUy.) " Mr. Flahsr't Digest ii a wondflrful work. It is a minds of bnmaa iadoitry.''— Jf^. '* I think it would be veiy difflealt to improve iqion Mr. HAer^t *(kmmtm 1m» DlgMt.' "Str Jamu FUHama Sttphm, on Ood^/hatiom. GodetroU—Vide "Trusts and Trustees." Leake.— Fui« ''Beal Property" and <* Contraete.*' Notanda Digest in La^^, Hquity, Bankruptcy, Admiralty, Divorce, and Probate Casea— By H. TUDOB BODDAM, of the Inner Temple, and HAKBY GREENWOOD, of Unoohi's Inn, Esqrs., BarxiBte»«t-Law. Third Series, 1878 to 1876 inclusive, hall-bound. Net, IL lis. 6d Ditto, Fourth Beries, for the. years 1877, 1878, 1879, 1880, and 1881, with Index. Each^ net, lU li. Ditto, ditto, for 1882, Plain Copy and Two Indexei, or Adhesive Copy for insertion in Text-Books (without Index). Aiumal Subscription, payable in advance. Ac^ 21s. *«* ^e numbers are issued regularly every alternate month. Each number contains a oonoiie analvsis of every case reported in the Law BeporU^ Laio Journal, Wtmy Reporter, Lam f^nes, and the IruHk Law keporU, up to and including the cases contained in the parts for the current month, with Tefwrences to Text-books, Statutes, and the Law Beports Consolidated Digest, and an ALPBABancAi; INDXX of the subjects contained in xaoh huxbir. Odger.— Fu2f << libel and Slander." Pollock.— F«i« " Partnerahip.'* Hoscoe.— Fids << Criminal Law " and •* Nisi "Mxmr DISCO VERY.-^^ of Executors and Adminis- trators.--By the Rt Hon, Sir EDWABD VAUGHAN WILLIAMS, late one of the Judges of Her Majesty's Court of Common Pleas. E^hth Edition. By WALTER VAUGHAN WILLIAMS and ROLAND VAUGHAN WILLISES, Esqrs., Barristers-at-Law. 2 vols. Royal 8vo. 1879. 82. 16«. ** A treatise which occupies an unique position and which is recognised by the Bench and the profession as having paramount authority in the domain of law with which it deals. —law JounuU, FACTORS^— Cavanagh.— Ficfe "Money Securities." FACTORY ACTS.— Notcutt's La-w relating to Factories and Workshops, "with Introduction and Ex- planatory Notes. Seoond Edition. By GEO. JARVIS NOTCUTT, Solicitor, formerly of the Middle Temple, Ef.|.,Bar- nsterat-Law. 12mo. 1879. 9s. FARM, LAW OF.— Addison ; Cooke.— Ficie •'Agricultural Law." Dixon's Law of the Farm.— A Digest of Cases connected with the Law of the Farm, and including the Agricultural Customs of England and Wales. Fourth Edition. (Including the "Ground Game Act, 1880.'*) By HENRT PEREJl^S, Esq., Barrister-at-Law and Midland Circuit Demy 8vo. 1879. 12. 6$. ** It U impoftiible not to be struck wiUi the eztnordinsry research that vamk tiave boon used in the compilation of inch a book as this.*'— £aw JimmaU FINAL EXAMINATION DIQEST.-Bedfo rd.— FiBeal Estale." %* AU tkmdaard LoM WVoodfairs Law of Landlord and TenanL— With a foil Collection of Fk^oedenta and Forms of Frooodxsre, Containing also an Abatnet of Leading Pto- podtionB, and Tables of eeitain Customs of the Coontiy. Twelfth Edition. In which the Precedents of Leases have been reriaed and enUurged, with the assistance of L. G. G. Bobbins, Esq. By J. IC LELT, Esq., Barrister-at-Iiaw, Editor of •< Chitty's Statates,** &&, ftc. BoyalSTO. 1881. 12.18s. *'Tbs sditer bat ezpended slabonte indnatiyaBd qFstanaatle aUtttyin nakliig the WDiic M perfect u po8aDle.''--fi0ltdl(orf* JSntrnaJL LANDS CLAUSES ACTS.— Jepson's Lands Clauses Con- solidation Acts: with Decisions, Forms, A Table of Costa. By ABTHUB JEPSON.Esq., Barrister-«t-Law. Demy 8vq. 1880. 18t. " The work condudos with a number oi formi and a remarkably good index." — Law Times. ** Ab far AS we have been able to dlseoTer, all the dedaions have been stated, and the effect of them conrectlv given."— i«i» Jofurnai. *' We have not observed any omiasions of cases of importance, and the pforpcrt of the decisions we have examined is fobiy well stated. The costs under ^e Acta are given, and the book contains a large number of fotms, which will be found useful "—&)/«ci/or«' Jcwmal. LAW, GUIDE TO.— A Guide to the Law: for General TJae. By a Barrister. Twenty-third Edition. Crown 8yo. 1880. iVi^ St. 6cl. *' Within a marvellously small comnara the au^or has condensed tJM main provi- sions of the law of England, applicable to almoet evexy transaction, matter, or thing incidental to the relations between one individual and another." LAW LIST.—Lav^r List (The).— Comprising the Judges and Offioen of the different Conrts of Jnstioe, Counsel, Special Pleadeta, Draftnnen, Conveyanoers, Solidtom, Notaries, oc, in "R^gUat^ and Wales ; the Ciranits, Judges, Treasnzers, Begfatrars, andHigh BaOiib of the Conn^ Conrts ; MetrMxxlitan and Stipendiazy Magistrates, Law and Fnblio Officers in England and the Cdloniea, Foreign Lawyers with their English Agents, SherifEi, Under-SheriflEs, and thdr Deputies, Clerks of the Peace, Town Clerks, Coroneis, ftc^ &c., and Commissioners for taking Oaths^ Conyeyancen Practising in England under Certificates obtained m Scotland. So far aa relates to Special Pleaders, Draftsmen, Conveyanoers, Soliciton^ Proctors and Notaries. Compiled l^ WILLIAM HENBT COUSINS^ of the Inland Bevenne Office Somenet Houaey Begistrar of Stamped Certificates, and of Joint Stock Companies^ and Published by the Authority of the Commitsioners of Inland Bevenue. 1882. (JVet oosft, 9t.) 10s. 6dL LAW REPORTS.— A large Stock of second-hand Beports. Prices on application. LAWYER'S COMPANION.— Fide "Diary." LEADING CASES.— Hay nes' Student's Leading Cases. Being some of the Principal Decisions of the Courts in Constitutional Law, Common Law, Conveyancing and Equity, Probate, DiToioe, Bankruptcy, and Criminal Law. With Notes for the use oi Students. Bv JOHN P. HAYNES, LL.D., Author of "The Pnwtice of the Chancery Division of the High Court of Justice," "The Student's Statutes,'* ftc. Demy 8vo. 1878. IOil <* Will prove of great utility, not only to Btudante, bat Prsctfttoasn. the Kotas an dear, pointed and conoiae."— £ai9 Hmu. «* We think that thie book will rapply a want Ihs book is riagafairij weD amnged fte reference.'*— XID SONS' LAW PUBLICATIONS. MARIT I ME COLLISION.-I.O wndes.— Marsden.^ Vide "Col- lision." MERCANTILE LAW.— Boyd.— Fife" Shippliig." Russell.— Ftde "Agency." Smith's Compendium of Mercantile La^vsr.— Ninth Edition. By 6. M. DOWDESWELL, of the Inner Temple, Esq., one of Her Majesty's ConnseL Boyal 8vo. 1877. XL 18i. Tudor's Selection of Leading Cases on Mercan- tile and Maritime Law^.—Witli Notes. By O.D.TUDOR, Esq., BaRWter-»t-Law. Second Edition. Boyal 8to. 1868. 12. 18<. METROPOLIS BUILDING ACTS—W^oolrych's Metropolis Building Acts, witli Notes, Explanatoiy of the Sections and of the Architectoral Terma contained therein. Second Edition. By NOEL H. PATEBSON, Bazxiater-at-Law. 12mo. 1877. 8jt. 6ci. MINES.— Rogers' La>w^ relating to Mines, Minerals, and Quarries in Great Britain and Ireland; with a Summary of the Laws of Foreign States, && Second Edition Enlarged. By AKUNDEL ROGEBS, Esq., Judge of County Courts. 8vo. 1876. li. lit. 6d, " The rolame will prove luTiliukble as & work of legml refereiioe.*'~7%€ MmiHg JoumaL MONEY SECURITIES.— Cavanagh's Law of Money Secu- rities.— In Tliree Books. I. Personal Securities. II. Securities on Property. III. Miscellaneous; with an Appendix of Statut«SL By C. CAVANAGH, B.A, LL.B. (Lond.), of the Middle Temple, Esq., Barrister-at-Law. In 1 vol. Demy 8?o. 1879. 21s. " An admirable synopsis of the whole law and inuctioo with regard to securitieB of every sort We deairo tu accord it all praise for its comi^etteMS and general accuracy ; we can honestly say there is not a slovenly sentence from beginning to end of it, or a single ca«o omitted whidi has any material bearing on the subject. ** — Saturday Reviev, ** We know ul uo work which embraces so much that li of overy-day importance, nor do we know of any anthor who shows more familiarity with his subject The book ia one which we shall certainly keep near at baod, and we beUeve that it will prove a decided aoquMtion to tne practitioner. "—J^ts Tiaiu, "The author has the ffift of a pleasant style : there are abundant and correct references to decisions of a recent date. An am^endix, in which is embodied tlie full text of several important statutea, adds to the utUity of the work as a book of reference ; and there is a good index.**— ^SoMeiAn's' Jotrrwal. MORTCACE.— -Coote's Treatise on the La^^v of Mort- cr age.— Fourth Edition. Thoroughly revised. By WILLIAM WYLLYS MACICESON, Esq., one of Her Majesty's CounaeL In 1 Vol. (1436 pp.) Royal 8vo. 1880. 2f. 2«. " There can be no doubt that the work is most comprehensive in its scope and ex- liaustive in itn treatment, and that it affords to the practitioner a mine of vahiablc nud tnwtwortliy information conveniently arranged and clearly expressed." — lav Mi'i/iaine, May, 1881. " Tlie book will be found a very valuable addition to the practitioner's lilnary. . . .... Mr. Mackeson may be congratulated on the success with whidi he has <»n- verted nn old and rather long-winded text-book into a complete, terse, and lovotical treatise for the modem lawyer."— <8i>a NISI PRIUS.— Roscoe's Digest of the La w^ of Evidence on the Trial of Actions at Nisi Prius.— Fourteenth Edition. By JOHN DAY, one of Her Majesty's Counsel, and MAURICE POWELL, Baxrister-at-Law. Bojtll2tDO, 1879.2^ (Bound in one thick volume ccUf or eircuU, 5s., or in two convenient vole, ooii^ or eireuit, 9a. net, extra.) *'The task of adapting the old text to the new prooedare was one reqalring moeh patient laboui, carefnl accuracy, and concIseDess, as well as diicretioQ in the omusion of matter oboolete or nnneceasary. An examination of the bulky volume before os affords good evidence of the poaseasioa of these qualities by the present editors, and we feel sure that the popularity of the work wiUcontiuue onabated nnder their conscientious care."— Selwyn's Abridgment of the Law of Nisi Prius.— Thirteenth Edition. By DAVID KEANE, Q.C., Recorder of Bedford, and CHARLES T. SMITH, M. A, one of the Judges of the Supreme Court of the Cape of Grood Hope. 2 vols. Royal 8vo. 1869. {PubUthed at 21. 16$.) Net, 12. NOTANOA.— Fia« "Digests." NOTARY.— Brooke's Treatise on the Office and Prac- tice of a Notary of England.— With a full coUectioii of Precedents. Fourth Edition. By LEONE LEVI, Esq., FJ9.A., of Lincoln's Inn, Barrister-at-Law. Svo. 1876. IL 4$, OATHS,— Braithwaite's Oaths in the Supreme Courts of Judicature. — A Manual for the use of Commissioners to Administer Oaths in the Supreme Courts of Judicature in England and Ireland and of all other persons empowered to administer oaths in aid of proceedings in courts of law. Fart L containing practical information respecting their Appointment, DesignatiDn, Jurisdiction, and Powers ; Part 11. comprising a collection of officially recognised Forms of Jurats and Oaths, with Explanatory Observations. Fourth Edition. By T. W. BRAITHWAITE, of the Central Office. Fcap. 8vo. 1881. 4*. 6d. '* The work wHl, we doubt not, beoome the reoosnised guide of commissioners to adinioister oaths."— <8Micitors' Journal. PARISH LAW.— Steer*s Parish Law; being a Digest of the Law relating to the Civil and Ecclesiastical Grovemment of Parishes and the Relief of the Poor. Fourth Edition. By WALTER HENRY MACNAMARA, Esq., Barrister-at-Law. Demy Svo. 1881. 16». " An exceedingly useful compendium of Parish Law."— Law Tiuiety February 5, 1881 PARTNERSHIP.— Pollock's Digest of the Law of Part- nership.— Second Edition, with Appendix, containing an anno- tated reprint of the Partnership Bill, 18S0, as amended in Conmutte& By FREDERICK POLLOCK, of Lincoln's Inn, Esq., Barrister-at- Law. Author of ** Principles of Contract at Law and in Equity." Demy 8vo. 1880. 8i. 6<2. " Of the execution of the work, we can speak in terms of the highest praise. The language is simple, concise, and clear; and the general propositions may bear oom< por&on with those of Sir James Stephen."-— Za» Sfa^zme. " Mr. Pollock's work appears eminently satisfactory . , . the book Is praise- worthy in design, scholarly and complete in execution."— SeKunfay itmew. • * AU stoiuiarti Lanw Worki tvrekeptin Stoek^in law cu^f and other bindings. 24 STEVENS AND BONg LAW PUBLX0ATI0N8. PATENTS.— Hiiidmarch's Treatise on the Law rela- ting to Patents.— 8vo. 1846. It 1«. Johnson's Patentees' Manual ; being a Treatise on the Law and Practice of Letters Patent, especially intended for the use of Patentees and Inventors.— By JAMES JOHNSON, Bamster-at-Law, and J. H. JOHNSON, Solicitor and Patent Agent. Fonzth Edition. Thoroughly revised and much enlarged. Demy Sva 1879. lOi. 6d, " A Tery «xcellenfe mannaL'*~£M9 Timet, ** Tba autbom haye not only a kaowledge of the law, but of the working of the law. Be- ■idee the table of oaeee there is a ooploat index to rabjecta. *''^Law JoumM. Thompson's Handbook of Patent La^w of all Countries.— Third Edition, revised. By WM. P. THOMPSON, G.E. 12mo. 1878. yet,2$.6d. PERSONAL PROPERTY.— Shearwoods Concise Abridjj- ment of the La^/v of Personal Property: showing analytically its Branches and the Titles by which it is neld. By JOSEPH A. SHEARWOOD, of Lincoln's Inn, Esq., Barrister-at. Law, Author of " Concise Abridgment of Law of Real Property,'* ftc. Demy 8vo. 1882. 5«. 6d, ..." Will be aoeeptable to many students, as giving them, in fact, a ready-made note hook."— Indermaur* Law Student*' Journal^ January, 1882. Smith.— Fide " Real Plroperty." PETITIONS.— Palmer.— Fide " Oonveyanoing/' Rogera— Fide "Elections." PLEADING. — Bullen and Leake's Precedents of Pleadings, with Notes and Rules relating to Pleading. Fourth Edition. Revised and adapted to the present Practice in the Queen's Bench Division of the High Court of Justice. By THOMAS J. BULLEN, Esq., of the Inner Temple, and CTRIL DODD, Esq., of the Inner Temple, Barrister-at-Law. In 2 parts. Part I. (containing (1) Introductory Notes on Pleading; (2) Forms of Statements of Clahn in Actions on Contracts and Torts, with Notes relating thereto). Royal 12ma 1882. 1/. 4e. "Mr. Thonuut Bullen and Mr. Cyril Dodd have done their work of adaptation admirably. '—Law Jaurfial, Jan. 21, 1882. POOR LAW.— Davis' Treatise on the Poor Laws.— Being YoL IV. of Bfuna' Jnatioe of the Peace. Svo. 1869. IL lU 64. POWERS.— Farwell on Powera— A Condae Trestiae on Powers By GEORGE FARWELL, B.A., of Lincohi's Inn, Esq. , Banrister«i-Law. Sto. 1874. 12. It. ** Ws recommend Mr. Farwell's book as ooDtainiog nithin a small oompaas vhat woold otherwise have tobe eooght oat in the pages of hundredi of oonfiisiiig reporta*— 21U Law. PRINCIPAL AND AGENT.— Petg rave's Principal and Agent. — A Manual of the I/aw of Principal and Agent By E. 0. PETGRAVE, SoUoitor. 12mo. 1867. 7f . (M. Petgrave's Code of the Law of Principal and Agent, with a Preface. 12ma 1876. Net, Mewed^ 29. PROBATE.— Browne's Probate Practice : a Treatise on the Prindplee and Practice of tha Cooit of Probate, in Contentions and Non-Ck)ntention8 BnsinesB. Revised, enlarged, and adapted to the Practice of the High Court of Justice in ^obate bosinesB, with the Statute of June, 1881. By L. D. POWLES, of the Inner Temple, Barrister-at-Law. Indud^ Practical I>irections to Solidtors for Proceedings in the Registry. By T. W. H. OAKLET, of the Prin- dpal Registnr, Somerset House. 8vo. 1881. 12. lOs^ ** This edition will thus supply the practttionerB In both branches of the professioii with all tho informatiQn that they may require in coiineetion with the probate of wHlB."— T»< Time»j Bopt 10, 1881. ** In its present form thia la undoubtedly the moat complete work on the Practlod of the Court of Probate This ia atrictly a practical book. No principle of law, atatute or form which could be of aenrlce to the practitianer in the Pn^Mite Diviaion appeara to haye been omitted."— 7Ae Law Tima, Sept 17, 1881. \^ All ikmdard Law Worktorehept in Stocky in laiw caff aaid other Undingi U», OHANOIfiRY LANE, LONDON, W.C. 25 PUBLIC HEALTH.— Chambers' Digest of the Law re- lating to Public Health and Local Govern- ment.— ^With Notes of 1260 leading; Cases. Varioiu official documents ; precedents of By-laws and llegulations. The Statutes in full. A Table of Offences and Punishments, and a Copious Index. Eighth Edition. Imperial 8vo. 1881. IL Us, Or, the abovo with the Law relating to Highways and Bridges. 21. FitzGerald's Public Health and Rivers Pol- lution Prevention Acts. — With Explanatory Introduc- tion, Notes, Cases, and Index. By G. A. K. FITZGERALD, Esq., Barrister.at-Law. Royal Svo. 1876. 1/. Is. PUBLIC MEETINGS.— Chambers' Handbook for Public Meetings, including Hints as to the Summoning and Manage- ment of them ; and as to the Duties of Chairmen, Clerks, Secretaries, and other Officials; Rules of Debate, &c., to which is added a Digest of Reported Cases. By GEORGE F. CHAMBERS, Esq., Bar- rister-at-Law. 12mo. 1873. Net, 2*. iUL QUARTER SESSIONS.—Leeming <& Cross's General and Quarter Sessions of the Peace.—Their Jurisdiction and Practice in other than Criminal matters. Second Edition. By HORATIO LLOYD, Esq., Recorder of Chebter, Judge of County Courts, and Dcputy-Churman of Quarter Sessions, and H. F. THITRLOW, Esq., Banister-at-Law. 8vo. 1876. U li. " The iireaont odlton appear to have taken the utmost pains to make the volume complete, and, from our examimition of it, we con thoroughly reoommond it to all interoated In the practice of quarter sessions." — Leu» TUnei. Pritchard's Quarter Sessions. — The Jurisdiction, Praccice and Procedure of the Quarter Sessions in Criminal, Civil, acd Appellate Matters. By THOS. SIRRELL PRITCHARD, of the Inner Temple, Esq., Barrister-at-Law, Recorder of Wenlock. 8vo. 1875. 21. 2s. '* We can confidently say that it is written throughout with deamesa and intelli- gence."— 1 877 inclusive. Consolidated with the Earlier Statutes thereby Amended. With Copious Notes, and a Supplement ocntaining the Orders under the Settled Estates Act, 1878. By HARRT GREENWOOD, M.A.. Esq., Barrister-at-Law. 8vo. 1878. lOt. " To stiidents particularly this collection, with the carofiU notes and references to previous legislation, will be of considerable value."— J^» Ttmn. ''llie author has added notos which, especially on the Vendor and Purchaser Act, and the Settled Estates Act, are likely to be useful to the practitioner.'' — Gptkiiw* JawmoL Leake's Elementary Digest of the Law of Pro- perty in Land.— Contaimng : Introduction. Part I. The Sources of the Law.— Part II. EsUtes in Land. By STEPHEN MARTIN LEAKE, Barrister.at.Law. 8yo. 1874. U 2s. ^1,* Hie above forms a complete Introduction to the Study of the Law of Real Property. Shearwood'a Real Property.— A Concise Abridgment of the Law of Real Property and an Introduction to Conveyancing. Designed to facilitate the subject for Students preparing for Examination. By JOSEPH A. SHEARWOOD, of Linooln*s Inn, Esq., Barrister-at-Law. DemySvo. 1878. 6t.6d. " The present law is expounded paragmphicallv, so that it could be actually Jranurf without understanding the origin from which it has sprxmg, or the prindples on which it is based." — Law Journal. Shelford's Real Property Statutes.— -Eighth Edition. By T. H. CARSON, Esq., Banrister-at-Law. Svo. 1874. IL lOi. Smith's Real and Personal Property.— A Com- pendium of the Law of Real and Personal Property, primarily connected with Conveyancing. Designed as a second book for Students, and as a digest of the most useful learning for Practi* tioners. By JOSIAH W. SMITH, B.C.L., Q.C. Pifth Edition. 2 Tols. Demy 8vo. 1877. 2/. 2«. " He has given to the student a book which be may read over and over sgrnln with profit and plessnre."— law Timet. " The work before ns wlU, we think, be found of rtry great serriee to the prscCitloaer/* ^Sokdior/ JommaL REGISTRATION.— Browne*s(G.Lathoni)Parlianieniary and Municipal Registration Act, 1878 (41 & 42 Vict. cap. 26) ; with an Introduction, Notes, and Additional Forms. By 6. LATHOM BROWNE, of the Middle Temple, Esq., Barrister-at-Law. 12mo. 1878. fit. U. Rogers — Vide " Elections." %* All tiandard Laio Workt art kept in StoeJr, in law col/ and oAer hindrngt, 119, CHANCEBY LiiNB, LONDON, W.C. 27 REGISTRATION CASES.--Hopwood and Coltman's Registration Cases.— Vol. I. (1868-1872). Net,2LlSt. Calt. Vol. II. ^1873-1878). Net, 2L 10*. Calf. Coltman's Registration Cases.-^Vol. I. Part I. (1879 — 80). Net, 10». RIVERS POLLUTION PREVENTION.— FitzGerald's Rivers Pollution Prevention Act, 1876.— With Explanatory Introdaction, Notes, Gaaes, and Index. Rojal Svo. 1876. 8«. fkt, ROMAN LAW.— Cumin.— f'ute" Civil" Greene's Outlines of Roman Law.— Conriflthig chiefly of an Analysia and Summary of the Inatituiee. For the nse of Students. By T. WHITCOMBE GREENE, B.C.L., of Lincoln's Inn, Banister-at-Law. Third Edition. Foolscap 8to. 1875. 7«. 6r peroaal and reterenoe."— ^10 MagtuiM. SHIPPINQ, and vide ** Admiralty." Boyd's Merchant Shipping La^ws ; being a Consolida- tion of all the Merchant Shipping and Passenger Acts from 1854 to 1876, inclusive ; with Notes of all the leading English and American Cases on the subjects affected by Legislation, and an Appendix containing the New Rules issued in October, 1876 ; forming a com- plete Treatise on Maritime Law. By A. C. BOYD, LLB., Esq., Barristerat-Law, and Midland Circuit 8to. 1876. U 5«. ** We can recommend the work as a Tory naefol oompendiom of shipping law.**— law ftmef. Foard's Treatise on the Law of Merchant Shipping and Freight— By JAMES T. FOARD, Bar- rister-at-Law. Royal 8vo. 1880. Half calf, 11. Is, SIGNING JUDGMENTS.— Walker.— ru2e "Judgments.*' SLANDER.— Odgers.—Kui0 *' Libel and Shinder." SOLICITORS.— Cordery's Law relating to Solicitors of the Supreme Court of Judicature.— With an Appendix of Statutes and Rules. By A. CORDERY, of the Inner Temple, Esq., Barrister-at-Law. Demy 8to. 1878. lis. ** Mr. Cordery writes tenley and clearly, and displays in general great industry and care in the ooUection of cases.' — Soiieitor't jounuU. *' The chapters on liability of solicitors and on lion msy be selected as two of the best in the book."— Zow JoumdL *^* AU standard Law Works are kepi in Slodc^ ia law calf and other bindings. 28 STEVENS AND SONS' LAW PUBLICATIONS. SOLICITOR'S PRACTICE.— Archibald.— Fttfo "Common Law." SPECIFIC PERFORMANCE.— Fry's Treatise on theSpeciHc Performance of Contracts.— By the Hon. Sir EDWAKD FBY, one of the Judges of the High Conrt of Justice. Second Edition. By tie Author and W. DONALDSON llAWLIKS, of Lincoln's Inn, Esq., Barrister- at- Law, M.A., and late Fellow of Trin. CoU., Cambridge. Royal 8vo. 1881. IL 16a " So far RB we have been able to compare uie second edition with the fint, we cannot but admit that the work has been much improved by the reriaion and re- writing of which this edition ia tlie result"— rA« Timet, Sept. 10, 1881. " We haTe gone with some care through yarioua portions of the work, and are satisfied that the reputation which Mr Justice Fxy has acquired as a Judge is fuUy sustained. H is style is clear ; his method of treatment exhaustiTe. He has produced a work which is excellent in itself and by far the best treatise upon the subject The index should not be passed over without a word of jiraiae. It is extremely foil and satisfactory and reflects great credit upon JJr. Rawlins^ to whom it is due."— Thf Late Timf»t Sent. 17, 1881. " The result of their joint labours is a work at once scientific and of directly prac- tical utility, carefully brought down to date."— lav Mayaxine and Seriaie, Nov. 18S1. STAWP LAWS.— Tilsley's Treatise on the Stamp Laws. — 8vo. 1871. ISi. STATUTE LAW.— Wilberforce on Statute Law.— The Principles which govern the Construction and Operation of Statntei. By EDWARD WILBERFORCE, of the Inner Tempk^ Esq., Barrister-at-Law. Demy 8vo. 1881. 18c " Mr. Wilberforce's book bears throughout consplcuoos marks of research and care in treatment" — Sdieitor*' Joumalt February 5, 1881. " A useful work upon a difikmlt and complicated subject" — Xaw TimtM. STATUTES, and vide *' Acti of Parliament.'' Chitty's Collection of Statutes ft*onri Magna Chartatol880.— ACollectloiiofBtatiitMofPraetlealllUlity; arranged in Alphabetical and Chronological order, with Notes thereon. The Fourth Edition, containing the Statutes and Cases down to the end of the Second Session of the year 1880. By J. M. LBLY, Esq., Barrister-at-Law. In 6 veiy thick vols. Royal 8vo. (8,346 pp.) 1880. 121.12c SupoUmtnt to abort, 44 <£• 45 Vict, (1881). Jloyal Svo. Sewtd^ 8a * * TbIi Edition is printed in larger type than fi)nier Editioiis, and with inereased fkeilitiei for Beferenee. *' It is needless to enlarge on the value of " Oiittys Statutes " to both the Bar and to solicitora, for it is attested by the experience of many years. It only remains to point out that Mr. Lely's work in brining up the collection to the present time la distinguished by care and judgment The difficulties of the editor were chiefly those of selection and arrangement A very slight laxness of rule in including or exuuding certain classes of Acts would materially affect the sise and compendiousnesa of the work. Btill more Important, however, is the wavin which the mechanical difficulties of arrangement are met The Statutes are compiled under sufficiently oomprehensiTe titles, in alphabetical order. Mr. Lely, moreover, supplies ua with three indices the first, at the head of each title, to the enactments comprised in it ; secondly, nn index of Btatutes in chronological order; and, lastly, a general index. Bf these cross references research into every branch of law governed by the Statutes is made easy both for lawyer and layman."— 77k< Timet, November 18, IbSO. " A very satisfactory edition of a time-hono\ued and most valuable work, the trusty guide of present, as of former judges, jurists, and d all others connected with the administration or pmctioe of the law."->/if«(irf o/Uu Peaet, October SO, 1880. "1 he practitioner haa only to takedown one of the compact volumes of Chittyt and he has at once before him all the legislation on the subject in hand."— ^SWfic^lon' Journal, November 6, 1880. ** ' Chltty ' is pre-eminvntlv a friend in need. Those who do not possess a complete set of the statutes turn to its chronological index when they wish to consult a par- ticular Act of Parliament Thoee who wish to know what Acts are in force with reference to a particular subject turn to that head in ' C hitty,' and at once find all the material of which they are in quest Moreover, thev ate, at the same time, referred to the most important cases which throw light on the subject"— Zow/osmsl, November »0, 1880. *«* AU tiandard Law Worii are l-ept in Stocky in law calf and ctker Undingt. 119, CHANCERY LANE, LONDON, W.C. 29 STATUTES.-Owrftowrf. *The Revised Edition of the Statutes, a-d. 1238- 1868, prepared under the direction oE the Statute Law Committee, publiflhed by the authority of Her Majesty's Government. In 15 vols. Imperial 8m 1870-1878. 192. 9«. •Chronological Table of and Index to the Statutes to the end of the Second Session of 1881. Eighth Edition, im- perial Svo. 1882. Us. •Public General Statutes, royal 8to, issued in parts and in complete volumes, and supplied immediately on publication. * Printed by Her Majesty's IMnters, and Sold by Stkvbnb k Sons. SUMMARY CONVICTIONS.— Highmore.— Ftrf« "Inland Revenue Cases." Paley's Law and Practice of Summary Convic- tions under the Summary Jurisdiction Acts, 1848 and 1879 ; including Proceedings preliminary and subse- quent to Convictions, and the responsibility of convicting Magi- strates and their Officers, with Forms. Sixth Edition. By W. H. MACNAMARA, Esq., Barristerat-Law. Demy8vo. 1879. U 4s. " Wo gUdly welcome this good edition of a good hook.*'—SolieUor$' Journal. Templer's Summary Jurisdiction Act, 1870.— Rules and Schedules of Forms. With Notes. ByF. G. TEMPLER, Esq., Barrister-at-Law. Demy 8vo. 1880. 5<. ** We think this edition eveirthing that eoald be desired.'*— iSft«l^eU Pi>tt, Wig ram. — Vide "Justice of the Peace," SUMMOI^SES AND ORDERS.— Archibald.— Fitfe" Judges' Cham- bers Practice." TAXES ON SUCCES8ION.-Trevor's Taxes on Succes- sion.— A Digest of the Statutes and Cases (including those in Scotland and Ireland) relating to the Probate, Legacy and Succession Duties, with Practical Observations and Official Forms. Completely rearranged and thoroughly revised. By EVELYN FRKETU and ROBERT J. WALLACE, of the Legacy and Succession Duty Office. Fourth Edition, containing full information as to the Altera- tions made in the above Taxes by the 44 Vict. c. 12, and the Stamp Duty thereby imposed on "Accounts." Royal 12mo. 1881. 12b. 6d. " Containa a great deal of practical information, which 1b likely to make it vory useful to solicitors. " — Law Journal, " The mode of treatment of the subject adopted by the authors is eminently prac- ticaX.''—SoUeUonr Journal. TITHES.— Burnell.— The London City Tithe Act, 1870, and the other Tithe Acts effecting the Com- mutation and Redemption of Tithes in the City of London, with an Introduction and Notes, &c. By HENRY BLOMFIELD BURNELL, B.A., LL.B., of Lincoln's Ino, Esq., Barrister-at-La^ Demy 8vo. 1880. 10s. 6d. TORTS.—Addison on Wrongs and their Remedies.— Being a Treatise on the Law of Torts. By C. G. ADDISON, Esq., Author of ** The Law of Contracts." Fifth Edition. Re-written. By L W. CAVE, Esq., M.A., one of Her Majesty's Counsel (now one of the Judges of the High Court of Justice). Royal 8vo. 1879. U, 18». *' As nov presented, this ra'aable treitlte mast prove highly acceptable to Judgee and the profeaeion.**— Zaw Tima. ** Cave's ' AddSsiio on Torts ' will be reoogaized as so mdispensable additliiu to ever; 1 iwjret's library."— Low MayoMine. Ball.— Fufe "Common Law." *J^ All Standard Law Worki are kept in Stock, in law calf and other bindin^i. W ITTYYESS A3rD SOX^ LAW mSLlCATUKSS^ TRAOC MAWCS^Hardin']? ram's Tr i'.< t^fc ;j^ 'A X LT. -..*4rsvr»rv X'trr^Ac^ iymjm^^rr^, h'w^sfJ' OaTT^N MfcLHUL^H HA£J>£NGHAM. S«oa^tian on tne La^w cf Trade tij^twrjky ffic^A.&f ft csBfucr < K^^t-^'-TiB Art*, 1*7^—7, 7'r>t Me7-,£.u/S.i* >Urk« Ad. l';^ Ub.ud StA'^ ^Utctc, Uiiited bt^X/ok, le77 ; and F«:^>r-^Arr, i*»r^ WitA m eop&ocfl Ix.icx. Bj hKbA.-^tlA>\ B.C.L^ M.A., of Umaia a In, £aq^ Iaw. ^io. I'tTi. 14a. " Tfa« !>• "'< e'r. r^'X f»J to fc« <^ •crri^c ti> a Io^ ei^m vf •'Mr. fy-t***:!*!. >*• wr/.'<» tt« fx^^r^ ard A/^U ' — 7V'/>1? Mnrtx *' Vygwvl M » o of very great ralue to all jpnrtitfainffa vho hare to advin on utMiU:rn c/tiiittcte^i with tra/le ntarka. "—StolvBUmfJ'AwrmmX. Trade Marks Joumal.~4feo. Sewed, (/amrf forto^A^.) Abf. I to 242 are now readg. Ad; eadi U. Index to VoL L (Noa. 1—47.) .Nei, Sa. Ditto, „ Vol IL (Noa. 48—97.) NH, Si. Ditto, „ VoL III. (Xoa. 98->123.) Ifet, St. Ditto, „ VoL III. (Noa. 124—156.) Net, Sc Ditto, „ VoL IV. (Sou. 157—183.) Net, Sfc Ditto, „ VoL V. (Noa. 184—209.) Nei, Sa. TRUSTS AND TRUSTEES.— Codefroi*8 Digest of the Principles of the Lai/v of Trusts and Trus- tees.—By HENRY GODEFROI, of Linooln'a Inn, Eaq., Bairiatcr-at-Law. Joint Aotbor of ** Godefroi and Sliortf a Law oi Railway (^ompaniea.** Demy 8to. 1879. IL la. " No rmo who r«f«ni to thU book for information on a qfieatioa within ita rutge la, w« think, llkoly to go awnjr unaatiaAad. "—Aolwrdair Review, tteplember 6, 1819. ** la a wr/rk of yruat utility to the practitioner.** — Law Magammt. " Aa a dlgcat of the law, Mr. Godefroi 'a work merlta commendation, for theautbor'a at«iom«iit« arc bri«f and clear, and for bia atatementa he refera to a goodly array of Hiithorltlot. In tlie table of caaea tlie referencoa to the aereral ooDtempofaneous roporia are given, and there la a fwj oopioua index to aubjecta."— Im» JumrmiL UtfCS— Jones (W. Hanbury) on Uses.— 8to. 1862. 7t. VENDORS AND PURCHASERS.— Dart's Vendors and Pur- chasers.— A Tieatiae on the Law and Practice relating to Ven- ilon and Purchaaen of Real EaUte. By J. HENKY DABT. of liinooln'i Inn, £aq.. one of the Six Conveyancing Connael of the High Court of Juatice, Chancery Diviaion. Fifth Edition. By the AUTHOR and WILLIAM BARBER, of Unooln'a Inn, Eaq, Barriaterat-Law. 2 vola. Royal 8vo. 1876. ^ ISt. 6tf. '• A vlandard work like Mr. Dart'i ia berood all pralne.*'— n< Lam . ~ STEVENS A SONS, 119, CHANCERY LANE, LONDON, W.C. 119, CHANCERY LA.NB, LONDON, W.C. 31 • . -- WATERS.— AVooiPych on the La>Ar of Waters.— Induding Rights in the Sea, Riven, &a Seoond Edition. 8vo. 1851. Net,10t, Goddard.— J^^t(2e ''Eaaements." WATERWORKS-Palmer.— Tide "Conveyancing." WILLS,— Rawlinson's Guide to Solicitors on taking Instructions for Wills.— 8vo. 1874. 4«. Theobald's Concise Treatise on the Law of Wills.— With Statutes, Table of Cases and Full Index. By H. S. THEOBAIjD, of the Inner Temple, Esq., Barrister-at-Law, and Fellow of Wadham College, Oxford. Second Edition. Demy 8vo. 1881. 1/. is. OPINIONS OP THE PRESS ON THE FIRST EDITION. "Jfr. Theobald has certainly given e?idoooe of eztenaire inveaUgation, oonsdenUons laboar^ and clear exposition."-— low Jioffatmt. " We deiire to record our decideo impreaaion, after a somewhat careful examinatton. that this is a boolc of great ability and value. It bears on every nage traces of care and sound indgment. It is certain to prove of great practical aseftunees, fbr It supplies a want which was beRinning to be dtotinctly relt.'*-^Meftor«' JournaL ** His arrangement being good, and his statement ot the effect of the decisions beinir clear, his work cannot fail to m of practical utility, and as sncb wo can commend it to the attention of the profession.**"— J^aie TSmu. WRONGS.— Addison.— Fufe "Torts." /%^^WX/-w'W% iRBFOl^TS, — j_ large stock new and &eco ad-hand, Estmiates on application^ BlJa'3DUg"C3-> — Eoceciited in the best manner at mode- rcUe prices and with dispcUch. The Law Reports, Law Journal, and all other Reports, bound to Office Patterns, at Office Prices. 3PB>i-^a.t:e3 acts — Th£ Publishers of this Cata- logue possess the largest known collection of Private Acts of Parliament (including Public and Local), and can supply single copies commencing fnym, a very early period. v-AX.TJATX03srs,_^v>r Probate, PaHnership, or other purposes. STEVENS AND SONS, 119, CHANCERY LANE, LONDON, W.C. STEVENS & SONS* ANNOUNCEMENTS OF NEW WOEKS AND NEW EDITIONS. Addison on Contracts. — ^Being a Treatise on the Law of Con- tracts. Eighth Edition. By Horace Smith, Esq^ Barrister-at-Law, Kecorder of Lincoln, Author of "A Treatise on the Law of Negli- gence," &&, &c. {Th preparation.) 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Cooke's Treatise on the Law and Practice of Agricultural Tenancies.— New edition, in great part re- written with especial reference to Unexhausted Improvements, with Modem Forms and Precedents. By O. Prior Ooldney, of the Western Circuit, and W. Rundl Griffiths, LL.B., of the Midland Circuit, Barristers at-Law. {In the pren.) DanielTs Chancery Practice.— Sixth Edition. By L. Field, E. C. Dunn, and T. Etbton, assisted by W. H. Upjohn, Esqrs., Barristers-at-Law. In 2 Vols. Demy 8vo. {Vol, II. in the preu.) Haynes' The Honours Examination Digest.— By John F. Ilaynes, LL.D., Author of "Student's Leading Cases," ftc, & c. {In preparation, ) Lush's Law of Husband and Wife.— By C. Montague Lu$h, of Gray*8 Inn and North Eastern Circuit, Esq., Banister-at-Law. {in prepareUion.) Macdonell's La'w of Master and Servant.— By John Macdondf, of the Middle Temple and South Eastern Circuit, Esq., Barrister-at-Law. {In the preu.) Morgan and Davey's Treatise on Costs In the Chan- cery Division. 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STEVENS AND SONS, 119, CHANCERY LANE, LONDON, W.C.*^ * *»• See alto CaUdngue at end of thU Work, STEVENS AND SONS, 119, CHANCERY LANE, W.C. Browne's Probate Practice.— A Treatise on the Principles and Pmf*tio(> of tlip Conrt of Probate in Contentious and Non-Contentioua Businosa. Kcvi:*od, enlarged, and adapted to the Practice of the Hij^h Court of Justice in Probate Rusiiieas, with the Statute of June, 1881. By L. D. POWLES, of the Inner Temple, Harrister-at-Law. Including Practical Directions to Solicitors for Pr.coedinirs in the Rciristry. By T. W. H. OAKLEY, of the Principal Registrj-, PonH'i-S'>t House. DmiuSro. 1881. Price V. lf)<. rJoth. "The nit>st coinpletc work oil the Prictice of the Court of Probate." — Late Tiinet, Sept. 17, IS-^I. Browne's Divorce Practice With the Statutes, Rules, Pees and Forms relating thereto. Fourth Ediii(^. (Including the Additiona] and Amended Kules, Julv, 1880.) 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I * JK logw of Modtrn Law Wortt, Report* Jte., doth, Uttered, price M., pott free. *«* See €tUo CaUUogue at end of this Work, M STEVENS AND SONS, U9, OHANOERY LANE, W.O. Pitt-Lewis' Complete Practice of the County Courts, embodying tlie Acts, Boles, Forms, and Costa, with additional Forms, Table of Cases, and a full Index. By O. PITT-LEWIS, of the Western Cironit, Esq., Banister-at-Law, assisted by H. A. DE COLYAB, Esq., Barrister-at-Law. In 2 vols. Demy Svo, 1880. (2028 pp.) Price 21. 2s. cloth. ** An excellent index eompletei a work which, in onr opinion, ii one of the best books of practice which is to be found in onr legal literature." — Law Times, Humphry's Common Precedents in Conveyancing, to- gether with the Conveyancing and Law of Property Act, 1881, and the Solicitors Remuneration Act, 1881. By HUGH M. HUMPHRY, of lincohi's Inn, Barrister-at- Law. Demy Svo. 1881. Price IQs. 6d. cloth. 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Darnell's Forms and Precedents of Proceedings in the Chancery Division of the High Court of Justice and on Appeal therefrom ; with Disser- tations and Notes, forming a complete guide to the Practice of the Chancery Diviaion of the High Court, and of the Courts of Appeal. Being the Third Edition of " Daniell'i Chancery Forms." Bt W. H. UPJOHJN, Esq., Student and Holt Scholar of Gray's Inn, &o., &e. Demy Svo. 1879. Price 21, 2s. cloth, Williams' Law of Executors and Administrators.— A TreatiseontheLawof Executors and Administrators. Eighth Edition, By WALTEB YAUQHAN WILLIAMS, and BOLAND YAVQBAN WILLIAMS, Baqn., Barristers-at-Law. 2 vols. Royal Svo, 1879. Price 31. 16s. cloth, " A treatise vrhlch occupies aj^"^"""*"'**«*iiaM^BUfllk4MSC28^^'^B^ hy the Bench and the prof esdun as having paramount " "^^which it deals. *— ^w Joumai.^. *«* AU Standard Lav f r^ ^^ <^^ Inndings,